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.