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Who Will Rule Us After the Next 9/11?The reality of NSPD-51 is almost as bad as the paranoia.

By Ron Rosenbaum
Posted Friday, Oct. 19, 2007, at 2:23 PM ET

(Continued from page 1)

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:

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Ron Rosenbaum is the author of The Shakespeare Wars and Explaining Hitler.
Photograph of nuclear bomb mushroom cloud on Slate's home page by Digital Vision.
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Remarks from the Fray:

If the president hadn't already invaded a country, selectively suspended due process, underhandedly engaged in torture, and generally pushed at the edges of the constitution in an attempt to expand executive power, then this would seem like normal document.

Actually, its existence answers the question raised by the author - who would coordinate the reinstitution of the electoral process in the event of catastrophe? The answer, regrettable only by the merit of the administration currently in power, is the President.

On paper this does make sense. The executive branch should be the branch to coordinate such a recovery, because constitutionally, the executive branch is the only branch that can actively "coordinate" anything. If you imagine such an emergency unfolding under say, Eisenhower, Clinton, or maybe even Reagan, it doesn't sound so gloomy. It sounds like a plan - the only force in the country capable of stepping up does so. Who else?

The picture is only scary because of who el presidente is currently.

--jwschmidt

(To reply, click here.)

People need to keep perspective. It's a policy directive. It has no weight as law. They can talk about how they want to run things, but if any president tried to whip this out as How It's Going To Be (TM), the other two branches of government would, at best, flip him off and then get on with trying to salvage things.

I'm not going to worry about this until I start seeing evidence that our military, or at least our domestic (federal and state/local) police forces are on board. If the president can't enforce his will through one of those groups, this remains a pipedream for a wannabe king.

--kinglyam

(To reply, click here.)

This is really just a written explanation of what would happen if there were a sufficiently awful disaster. It's hard to imagine a President who wouldn't take extraordinary, and at least arguably extralegal, measures in circumstances where there was a real loss of government continuity, like a bomb destroying the Capitol while the House and Senate were in session. In other words, this is just a planning document, and probably actually just a more formal version of a memo that's been kicking around the White House since the Soviet Union got the atomic bomb. Having it out in the open actually is a little bit reassuring.

In context, the "comity" language reads to me like an explicit recognition that the other branches are co-equal. The President's job under that language is to coordinate, not to run everything.

That said, I do find the Administration's resistance to showing the classified appendices to the people who have oversight over those issues more than a little creepy. I am aware that it's always been the executive's view that Congress is leakier than a sieve, particularly as to really interesting stuff, but in the past that's never led to wholesale denial of access. This is, if anything, worse than the way the NSA programs were treated, and it has to make you wonder what exactly has to be hidden so well. Unless it's the launch codes for nuclear weapons, there's no reason I can think of to deny access completely.

--randy-khan

(To reply, click here.)

The first problem W would face as self-declared fuhrer would be regional loyalty. He could quickly find himself dictator of the red-state south, the rest of the country effectively being self-governed at the state level. Keep in mind that W's approval ratings are at historic lows. Whatever comity he can expect from the lobbyist-owned congress and hack-judiciary will not necessarily be matched by the people. After a coup, in the face of massive popular outrage, who is to say the governors of Washington, or California, or Massachusetts, or Minnesota will take orders from DC?

NSPD-51 and annexes come formally from the Bush White House, but essentially all the beltway players are on board (as with warrantless surveillance and every other partial erasure of the constitution already accomplished), along with the corporate media. Hence what Rosenbaum as observed: not a peep from Congress, the media, or the think tank crowd.

That is where the national military comes in, of course. Notice that all the leading Democrat presidential candidates are all lined up lock-step behind the idea that our military needs to be larger by 100,000 troops. America faces no credible military threats from anywhere. Our historic commitments to defend South Korea and western Europe from land invasion are looking a little stale.

These are the same troops who can pull a Haditha and later say with a straight face they did nothing wrong. If martial law comes down on America, it will be like Argentina in the 1970s, and alas too late to state the obvious -- we made a mistake putting these people in power.

It's a paradox, and incorrect to say, but true: our armed forces don't fight for our freedom any more. They imperil it. What we desperately need is 100,000 fewer troops. Then you could be sure the beltway crowd won't bother with a coup.

--proxywar

(To reply, click here.)

(10/21)

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