Directive 51 Isn’t the Problem: It’s Those Secret Annexes


There has been some concern – probably not enough – over Bush’s recent signing of Directive 51. Directive 51 effectively moves responsibility for the management of a “catastrophic emergency” from FEMA and other scattered Federal depts into a single locus – the White House.

Pam Spaulding at pendagon titled her post on this, “Bush: dictator with a stroke of a pen” and called the Directive a “power grab”. In a typical response like several I got in my email over the weekend, one writer put it this way:

“On May 9th, 2007, Bush declared himself dictator, with Directive #51. With any catastrophic event as determined by President Bush, he is able to take over all 3 branches of government until he determines the catastrophe is over. Maybe somebody jaywalking could activate the catastrophe.

Well, it’s not going to be that easy but one takes his point. Loosely constructed and loosely construed, Directive 51 could give Bush dictatorial power if interpreted incorrectly, there’s not much doubt about that. What is in doubt is whether it really gives him the power it seems to.

In order to understand what I’m about to say, you need to know that legal documents can’t be analyzed in pieces. They have to be considered as “wholes” with each segment having a distinct legal bearing on every other segment, including references to precedents and case citings. Essentially, a legal document is a highly complex, sophisticated and structured formal argument, even in contract law. It doesn’t just lay out the what’s and how’s, it defines the terms, explains the reasoning behind its assumptions, and justifies its conclusions.

If you look at Directive 51 as a legal document – which it is – there are significant difficulties with interpreting it due to its many internal contradictions. For example, let’s look at the definition of “catastrophic emergencies”.

(b) “Catastrophic Emergency” means 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;

Pretty loose, right? Could be anything bigger than jaywalking, practically. But then you run into the document’s controlling section which defines the policy requirements under which the above definition will function.

(3) It is the policy of the United States to maintain a comprehensive and effective continuity capability composed of Continuity of Operations and Continuity of Government programs in order to ensure the preservation of our form of government under the Constitution and the continuing performance of National Essential Functions under all conditions.

“National Essential Functions” are in turn defined as:

(h) “National Essential Functions,” or “NEFs,” means that subset of Government Functions that are necessary to lead and sustain the Nation during a catastrophic emergency and that, therefore, must be supported through COOP and COG capabilities;

The key contradiction here is in the definition of “catastrophic emergency” where it says “any incident, regardless of location“. The policy quite clearly limits a relevant location of the event to one which endangers the functioning of the Federal or state govt machinery. On its face, it would NOT, for instance, apply to New Orleans after Katrina because the state govt isn’t situated there and was able to function during the event, let alone after it.

So, under Directive 51, would Katrina have been a legitimate legal excuse to invoke martial law and subsume the power of the state of Louisiana into the federal bureaucracy? Probably not. Would that stop Bush from using D51 to do it anyway? Probably not.

In a nutshell, that’s the difficulty with the entire document. Legally, it’s a mess. Under “Implementation Actions”, which defines what the Directive can be invoked to affect during a catastrophic emergency (CE), we find NEF’s defined this way:

(5) The following NEFs are the foundation for all continuity programs and capabilities and represent the overarching responsibilities of the Federal Government to lead and sustain the Nation during a crisis, and therefore sustaining the following NEFs shall be the primary focus of the Federal Government leadership during and in the aftermath of an emergency that adversely affects the performance of Government Functions:

(a) Ensuring the continued functioning of our form of government under the Constitution, including the functioning of the three separate branches of government;

What this appears to mean is that the Executive branch is required to respect, protect, and restore the checks-and-balances system of the Constitution even as it absorbs their powers into itself. IOW, it is taking away their power in order to make sure they have it. This is the old “We have to destroy the village in order to save it” logic left over from the days of the Viet Nam War. Even Jerome Corsi at the ultra-right-wing WorldNetDaily picked up on that.

Ironically, the directive sees no contradiction in the assumption of dictatorial powers by the president with the goal of maintaining constitutional continuity through an emergency.

Legally speaking, that’s not irony, it’s incoherence.

Yet the definition of “Enduring Constitutional Government” which determines the restrictions of presidential power is quite clear.

(e) “Enduring Constitutional Government,” or “ECG,” 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 and with proper respect for the constitutional separation of powers among the branches, to preserve the constitutional framework under which the Nation is governed and the capability of all three branches of government to execute constitutional responsibilities and provide for orderly succession, appropriate transition of leadership, and interoperability and support of the National Essential Functions during a catastrophic emergency;

The word “coordinated” has a very specific legal meaning which automatically makes the assumption or use of unitary executive power illegal, and the phrase “during a catastrophic emergency” means it would be illegal from the moment the emergency is declared, not just after it’s over.

Oddly, nowhere does D51 specify whose responsibility it is to either declare a catastrophic emergency or declare it over. Since the declaration of a Federal emergency, under which this would fall, has clearly been the president’s, we can safely make the assumption that it stays there. But nowhere in the document is that stated openly or unambiguously. Who declares an emergency over has always been a subject of debate, and this document does nothing to clear it up.

Taking D51 at face value, I would have to say that the totality of it makes quite clear that the president’s only power during a catastrophic emergency is to declare it and then act as a facilitator for relief efforts and the maintenance of govt “continuity” at all levels. That’s hardly “dictatorial”. In fact, it’s not that different from what went on before except for locating a central office in the WH.

D51 isn’t the problem. This is the Bush Administration. It isn’t what we see that we should be afraid of, it’s what they won’t let us see. At the very end of D51 is this terrifying exclusion:

(23) Annex A and the classified Continuity Annexes, attached hereto, are hereby incorporated into and made a part of this directive.

(24) Security. 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.

Once again, Bush is using “national security” to hide secret instructions in which there may be any number of exemptions and exceptions to the restrictions built into the part of D51 that’s been made public. If there are dictatorial, “unitary president” powers built into D51, that’s where we’ll find them.

Which means, since they’re classified, we’ll never know what they are until they’re invoked. And maybe not then.

Advertisements

19 responses to “Directive 51 Isn’t the Problem: It’s Those Secret Annexes

  1. I knew you’d do a good job with this. Thanks!

  2. why don’t we have public access to annex A?

    i felt a sense of panic as i scrolled through countless stories regarding the directive, and couldn’t find one with a copy of annex A. how can this be secret? where is the outrage from congress? the courts? the public?

    if anyone knows how to reference annex a, please post. as a former contracts manager, annexes, addendums, etc. can be used to hide any unpleasant aspects to the document. i’m sure this is the case in this instance. people, wake up

  3. debbie, I understand your frustration, anger, and concern. All I can say in response is that legal bloggers who would normally have jumped all over this – John Dean, Scott Horton, Glenn Greenwald, all Constitutional experts and/or civil rights lawyers – haven’t written a word about it that I can find. From my reading, I suspect that’s because, legally, it isn’t – as I said – that big a deal. It isn’t all that different from what came before it, the language is for the most part pretty standard, and consequently it isn’t sending up any red flags in the legal community.

    Well, if hyper-aware Constitutional scholars aren’t excited, there isn’t much chance the MSM is going to pay attention.

    As for Annex A, to my knowledge, even tho it supposedly isn’t classified, it hasn’t been published, either, and no one has seen it. There has been some recent scuttlebutt that suggests neither it nor the secret annexes have even been written yet, which would mean that according to D51, documents that don’t yet exist have been attached to the directive. That’s questionable and possibly illegal anywhere outside the unitary presidency mindset of Bush and Cheney, but that certainly doesn’t mean it hasn’t been done.

    A suit to declassify the annexes would go absolutely nowhere, so I don’t know how we’ll ever find out. We can only hope that the next president will replace the Bush directive with a new standard for emergency response.

  4. that you could make such a remark about directive 51 is substantial proof of your limited perspicacity. there can be little doubt that you were one of those in the front of the crowd who were complaining about how FEMA failed during the catastrophic event known as Katrina, yet when PRESIDENT Bush does something constructive to streamline responses to catastrophic events–e.g. moving the response arm into a centrally located facility (the White House), so he and ALL future Presidents will have the ability to decrease response time, you’re in the front of the line of conspiracy theory hacks. You’re behaving as if stupidity were a virtue, but then, that’s about typical of all liberal whiners. –Chiron
    PS, I’ll bet this comment won’t appear with those who are slavering to agree with your idiotic views.

  5. Typical conservative wingnut. Didn’t even bother to read it, did you? The main thrust of the post is to DEBUNK the idea that D51 – at least, that portion of it we know about – gives Bush powers presidents didn’t have before, NOT to spread the fear that it does.

    But since you’re so snowblind you’re willing to believe in the face of all evidence to the contrary that having the office in the WH would have made a difference to Bush’s response-time after Katrina, you’ve had way too much kool-ade for a rational discussion. Rave on.

    PS. You lose. On all counts.

  6. I read enough to know that you can’t see past the end of your nose when it comes to responding to catastrophic emergencies and your hatred of George Bush has blinded you and the rest of your bug-eyed liberal minions. While your inclination is for everyone to hold hands and sing Kumbaya ’til the bad stuff goes away, people with cajones and a sense of responsibility are pulling you out of the mess you’re in. For what it’s worth, I have read ALL of HSPD 20, including Appendix A (which is classified), and I’m far more qualified to speak on the subject of people of your ilk who hide under your beds each night fearing the next vast right-wing conspiracy. What you should be fearing are people like the Clintons, who sold technology to the North Koreans that put them on the fast track to a nuclear bomb, people like Sandy Berger, who absconded with top secret documents so he could destroy the evidence that Clinton ignored the Al Qaida threat, and people like Pelosi, who went to Iran to suck up to their regime. When it comes to deciding “who gets it” it is YOU who needs a plexi-glas belly button to navigate your way around.

  7. Yadda yadda yadda. George Bush is God, nobody could have seen it coming, everything in Iraq is fine but the media aren’t reporting the good news, Gonzales is a terrific AG, Dick Cheney is a gentleman, Guantanamo isn’t unConstitutional because Georgie says it’s not, and anyway it’s all Clinton’s fault.

    You know, you guys really need a new song. That one’s getting a lot older and a lot tireder than Kumbaya. And that’s saying something.

    You did say one genuinely new thing, tho it doesn’t make any sense – not that that ever bothers a Bush supporter. You guys like incoherent nonsense apparently. And slogans. Lots of slogans so you don’t have to actually, you know, like, think. It isn’t your strong point, I know.

    Neither are metaphors, obviously. I suspect that may be your first attempt, but it shows some talent for combining non-sequitors and original if flatulent imagery.

    Plexi-glass belly button??!!

    That definitely needs work.

  8. Poor Mick.

    You’re in a state of denial and even you don’t believe what you’re saying. All I know is that I can’t save you from yourself because you’re one of those pseudo-intellects who think they are the ultimate authority on everything.

    I have been the first to note that George Bush has failed on many points, but that’s because I’m an independent and I don’t have any sacred political cows–e.g. Hillary.

    What I do know is this:

    1. I would rather have had George Bush in office than any flip-flopping Democrat I can name. Yet, while George Bush has at least taken a stand on what was the best intel available at the time and acted on it, the Democraps (who voted for the war before they voted against the war, etc.) have used the war on terrorism in any manner that has been convenient to them. It simply is not ethical to risk the morale of American soldiers for politcal gain.

    2. I also know the horror of war, and I believe the vast majority of Americans don’t have the stomach for it. I can’t blame them; war sux. Still, I believe as Sun Tzu taught: If one must make war, make war to win a decisive victory in the shortest amount of time. Bush’s failure was that he didn’t understand Sun Tzu, and no one (it seems) understands the Arabic corollary: the enemy of my friend is my enemy.

    Bottom line is we’re fighting a war on ideology, the war was brought to us–we were attacked–and if you’re inclined to blame America for this, then you really do need that plexi-glass belly button because you’ve definitely got your head up your ass.

    Chiron

  9. Some improvement here.

    1. Right-wing TP, same old cliches, assertions w/no attempt to provide evidence or justification, name-calling, unsubstantiated charges – the usual. D-

    2. Interesting. Not exactly constructive but at least not the usual mindless, repetitive slogans.
    C

    I doubt that George W Bush, a man who brags about not reading anything, even in college, and affects pride in ignorance, would understand the Cliff’s Notes on Sun Tzu.

    Assuming for the sake of argument that this is “a war on ideology” – it isn’t – that’s not a war anybody can win. You can’t go to war against a thought and expect to wipe it out. It doesn’t work that way. It has never worked that way. Ever. In all of recorded history.

    Yes, “we were attacked”, but for the umpteenth time NOT BY IRAQ. Iraq had NOTHING TO DO WITH 9/11. That’s no longer debatable. It’s been proven beyond the shadow of a shadow of a doubt and even Georgie admits it. We’re in Iraq because it has the second largest oil field in the world.

    Here’s the analogy: somebody murders your neighbor. The police go after the murderer in the sleazy part of town where he’s hiding but the corrupt city mayor claims there was a conspiracy and orders them to arrest a guy who owns land the mayor wants for himself. He invents “evidence” later proved to be fake (the “yellowcake” forgery leads back to Cheney’s office) and takes the land.

    That strikes you as smart, necessary, a good move? You’d support that, would you?

    Just out of curiosity, how do you explain./reconcile/justify the facts that:

    a. there were NEVER any WMD’s in Iraq and we now know Bush (and everybody else in the WH) knew it;

    b. there was NEVER any contact between Hussein and AQ, before or after 9/11;

    c. we abandoned Afghanistan – where Osama is, the man who did attack us – to invade Iraq and he’s still at large;

    d. during its first few weeks in Baghdad, the Army was ordered by civilian authority (Rumsfeld) to abandon its protection of other Iraqi govt sites – which were being looted – in order to maintain total control of the Oil Ministry.

    And btw, repeating a metaphor doesn’t automatically improve it. It’s still pretty crude. You wanna try again?

  10. It might be crude but it’s true. Denying the FACT that AQ was and is in Iraq won’t make it any less true. RE: WMD, the Hussein had a history of using them before–Gulf War I (if you were out of diapers by then you should remember), and EVERYONE in D.C. was privy to the SAME intelligence that indicated Hussein had them poised for deployment. The difference is, the Democraps who voted for the war before they voted against the war are now using the war on terror to blame America for all the wrongs in the world, and the hate Bush crowd is nearly orgasmic with the idea of defaming the President.

    You know, I can always spot when a lib knows they don’t have an argument when they use phrases like yada yada yada; it’s their code for acknowledging the truth of a statement without having to refute it by logic, reason, and empirical evidence.

    I think you’re beyond redemption.

    Chiron

  11. I’m beyond redemption, thank god. Mick is beyond compare ;)

  12. 1) Denying that AQ was NOT in Iraq before the invasion doesn’t make it true no matter how many times O’Reilly says it. Zero evidence. Everything the loonatic right has come up with has been debunked. There was no secret meeting in Prague, there was no secret meeting in Tikrit, and there were no AQ operatives, let alone camps, before the invasion.

    2) Hussein’s use of WMD’s against the Kurds was BEFORE the UN sent inspectors and BEFORE Hussein bowed to US and international pressure to get rid of them. For months – years – before the war, the inspectors’ reports said they had been destroyed. El Baradai said there weren’t any, Scott Ritter said there weren’t any, and in the meeting with Blair before the invasion, Bush admitted there weren’t any. You want facts? Those are the facts.

    Using your “logic” is like saying that the breakfast you ate at 9am must still have been on the table at 2pm because it was there at 8.59. You know, things change over time. Ever notice that? Apparently not.

    3) EVERYONE in D.C. was privy to the SAME intelligence that indicated Hussein had them poised for deployment.

    What in gawd’s name are you talking about? Are you just making this stuff up?

    Facts:

    a. The rumors about the supposed WMD build-up came from Ahmad Chalabi, a notorious con artist who was under indictment in Syria for bank fraud, and source “Curveball”, apparently a private informant of Cheney’s C-TEG group.

    b. The CIA warned Cheney’s office repeatedly that Chalabi’s information was bogus or unconfirmable and that Curveball couldn’t be trusted. Cheney ignored their assessment at first and then, when they wouldn’t buy the Admin line, went to the CIA in person to tell them what it was he wanted them to report.

    c. Powell’s State Dept Intel Division was telling him the same thing the CIA was telling Cheney – that there was no evidence and that the VP’s informants weren’t anything like reliable.

    All of this is on the record (along with a LOT more), so get your head out of Fox Propaganda and look it up.

    4) “Yadda yadda” is what we say when we’re tired of debunking the same false Rethug TP’s over and over and over again. You’re going to believe what you want to believe regardless of facts, so there’s comes a point when the 4, 876th time of repeating them is useless.

    5) it’s their code for acknowledging the truth of a statement without having to refute it by logic, reason, and empirical evidence….

    This is just priceless. When I could stop laughing, I thought I ought to point out that you’re the one making assertions without evidence that are contrary to the facts, violating the principles of reason by taking the Bushies’ lies on faith, and ignoring empirical evidence by the truckload.

    But hey, that’s what we’ve come to expect from the mindless robots of the right. You wouldn’t be who you are – blind, Jim Jones-style disciples – if you didn’t.

    Like I said, Rave On.

  13. The king is about to be toppled, he will stop using words like executive privilege and top secret to hide his scams of power and corruption, he will be found guilty of contempt of the congress by July 9th 2007 if he dose not comply with the subpoenas in the justice department scandal where these people tried to make justice a partisan debate that’s never going to fucking happen justice is not a political game, on side note the congress and the senate are wise to this mans lust for power and have already started to break his policies up using other amendments to the constitution that back door him. In the event he ever used such a paper to control the American people unjustly to become there dictator, I assure you millions with guns would not allow it, this is not a threat only that if he used that bill out of its intent to safety of the people but to place himself as the new ruler of USA and take away the peoples right to chose their leader he would face millions upon millions of angry Americans with guns. The people have ruled this county from its start and they will continue to rule it till its end Bush is just a single simpleton like Nixon who thinks he pull a fast one and not face the wrath of the American people.

  14. Pingback: Directive 51-2: Member of House Committee on Homeland Security Denied Access to Annexes « Mick Arran

  15. chiron is an idiot!

  16. looking through my plexi glass belly button, that is……

  17. I think this is it! We’re going to war with Russia!

  18. At least Chiron is objective about this article. The writer obviously presupposes that Bush has an evil motive in every action he takes. You might want to consider that this directive 51 replaces the 1998 directive 67. Now let me see, who was the king…I mean president…then? Well, that directive has been made public. Gee, I wonder what benevolance Mr. Clinton was trying to hide? I will refrain from delving into the Katrina victimology reference. Get a grip!
    Go Chiron!!

  19. Listen to you guys… The situation of D51 is just a pre-requisite to the 1 world government that is soon to encompass the world. If you guys really knew ANYTHING about politics ( not just in general) but in specifics then you would understand this. The New World Order has and always have had puppets (presidents). They use them as scapegoats and people like Chiron and Mick evidently are blind to these facts. While you rant and rave ,the Illuminati of the world have and always have had a strong-hold on who is going to do what, who was going to be blamed, and how it would be percieved by the people ( which is irrelevant to them) as long as the people don’t assemble and try to keep them from achieving their goal which is a 1 world central government, 1 world banking system (amero) which you will be thanking the Mexico, Canada, and the U. S. for when the form the NAU ( North American Union). I tell you what… I used to think that everything considered a conspiracy could never be true thanks to my U.S. government telling me so. But once I began to grow out of the “sheeple” mode. I wised up to the fact that the secret societies (Bilderberg Council) were the ones really running the show….. A couple websites with critical information about these matters are prisonplanet.com,bridgeoflove.com…. try them out and tell me what you think. You guys seem intelligent so I guess that you’ll be able to comprehend! LoL.. The reason why we can’t come together as people are simply because of ideoligies… Please people let’s get it together before it’s too late… Luv u all…

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s