Who Will Rule Us After the Next 9/11?
The reality of NSPD-51 is almost as bad as the paranoia.
But consider provision 2E of the directive:
"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. (Italics mine.)
Do you see those five weasel words "as a matter of comity"? Just what elements of the legislative and judicial branches will be allowed to participate in "executing constitutional responsibilities" and "providing for orderly succession [and] appropriate transfer of leadership"?
In other words, who gets to call the shots? What does comity mean in this context? Informally, it means good-natured, good-faith camaraderie. In its jurisprudential sense, the American Heritage Dictionary defines it as "the principle by which the courts of one jurisdiction may accede or give effect to the laws or decisions of another."
In other words, in the weasel-speak of NSPD-51, it implies that one or more branches of the government will have to cede power to another. And since everything is to be "coordinated by the president," I'm guessing that the members of the Supreme Court left alive and some congressional leaders left alive (How chosen? What party balance?) will in effect have to sit around a big conference table and do a lot of "ceding" to the executive.
And given the current state of relations between Congress and the executive, such comity will not necessarily translate into camaraderie.
If it comes down to whether to pull the nuclear trigger, who will get to vote, and how large a majority will be required to launch?
Comity—that innocent-sounding word—could well turn out to be the excuse for junking those pesky checks and balances the Founding Fathers seemed so obsessed with. For an indeterminate period of time.
The document is also hazy on when our new continuity policies will be set in motion. The directive tells us that they'll kick in whenever the nation faces a "catastrophic emergency." But look how vaguely "catastrophic emergency" is first defined:
"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.
These are profoundly, potentially calamitously, broad terms. Who defines what is extraordinary? Who defines how severe severely is? Is there any procedure to challenge the junking of constitutional government?
Worse, "catastrophic emergency"—woefully vague to start out with—is later expanded to include even "localized acts of nature and accidents" as well as "technological or attack-related" emergencies.
In other words, even if you don't believe the most sinister paranoid coup theories, the document does nothing to allay one's fears that it could be used in a sinister way.
I wish I did, but I see nothing in the document to prevent even a "localized" forest fire or hurricane from giving the president the right to throw long-established constitutional government out the window, institute a number of unspecified continuity policies, and run the country with the guidance of the "National Continuity Coordinator" and with the "Continuity Policy Coordination Committee" for as long as the president sees fit.
This order has been issued by executive fiat and has not been subjected to any public examination by the other two branches, which have behaved in a supine way that suggests how they'll behave when comity time arrives and urgent decisions on the fate of the nation and perhaps the world (nuclear retaliation being what it is) need to be made immediately.
The fact that Congress has not scrutinized and challenged the potential here for an emergency-situation power grab is scandalous, unacceptable.
Let Congress pass a law posthaste nullifying the directive, and then when the executive nullifies the nullification, challenge it in the courts. I can't believe even this Supreme Court, with its deference to executive power, could take this clownishly drafted document seriously.
It's not that others haven't noticed the problem. The Wikipedia entry on NSPD-51, for instance, cites rational warnings against it from both right and left:
Conservative activist Jerome Corsi and Marjorie Cohn of the [left wing] National Lawyers Guild have interpreted this as a break from Constitutional law in that the three branches of government are equal, with no single branch coordinating the others. … The directive does not specify whose responsibility it would be to either declare a catastrophic emergency or declare it over.
Ron Rosenbaum is the author of The Shakespeare Wars and Explaining Hitler. His latest book is How the End Begins: The Road to a Nuclear World War III.
Photograph of nuclear bomb mushroom cloud on Slate's home page by Digital Vision.