The reality of NSPD-51 is almost as bad as the paranoia.
10/19/07 "Slate" -- -- Oh, god. I'm reluctant to write this particular column. I've been scarred by this kind of story before. I've learned that it's difficult to write about the sources of paranoia without spreading paranoia.
But the subject, NSPD-51—that's National Security Presidential Directive 51—and the attendant explosion of blogospheric paranoia about it deserve attention. Even if you don't believe, as I don't, that NSPD-51 is a blueprint for a coup in the guise of plans for "continuity of government" in the event of a national emergency (such as a terrorist attack during an election campaign). Even if you don't believe, as I don't, that it will be used as a pretext for canceling the upcoming presidential election and preserving "continuity" of this administration in office.
Nonetheless, the specifics of the directive are a matter of legitimate concern that has not been given the urgent and sustained attention it deserves by Congress or the mainstream media.
I first became aware of the extent of the paranoia when I read the following comment, which was appended to an essay Naomi Wolf wrote for the Huffington Post:
Scenario for 2008: Sometime in middle to late summer, perhaps early fall, a "terrorist attack," or a natural disaster occurs, allowing Bush to suspend the elections in the name of "national security," and take the control of the government via the "National Security Presidential Directive/NSPD 51" and "Homeland Security Presidential Directive/HSPD-20," released by the WH May 9th of this year. He could remain in control as long as he wanted. Now, wouldn't THAT be an interesting nightmare?
Crazy, right? Well after I read it I Googled "NSPD-51" and got something like 36,000 hits. (HSPD-20 is essentially the same directive under a different title.) Most of the ones I sampled elaborated on the "nightmare" coup scenario above. Of course, Google hits are not evidence of the facts, only of the temper of the times, and the times are seething with paranoia.
But that doesn't mean NSPD-51 doesn't deserve careful scrutiny. Consider that an election-eve al-Qaida attack, for instance, is not inconceivable. What if a nuclear device goes off in New York, Chicago, or Los Angeles the weekend before the election and a warning is issued that the other two cities will be hit on Election Day?
Who will decide whether the elections in those heavily Democratic states should be put off or whether the entire election should be postponed until ... when? Until the bodies are cleared, the gamma radiation has subsided? Just how wise and fair—and constitutional—are the brand-new mechanisms for "continuity of government" that NSPD-51 has put into effect with almost no prior and little subsequent discussion last May?
And there's another paranoia-inducing element of the story: The existence of "classified continuity annexes" whose content has been kept secret even from the House Committee on Homeland Security. A troubling aspect of the story that, so far as I know, only one mainstream media reporter, Jeff Kosseff of the Portland Oregonian, has pursued.
As it happens, I had a troubling experience in the past writing about paranoid fears that an unpopular president will cancel a presidential election. The experience helped turn me into a conspiracy theory skeptic, so let me briefly recount that incident—which, curiously enough, also involved the Portland Oregonian—so you'll understand the perspective I bring to the question.
Return with me to 1970, another moment of seething paranoia two years before Richard Nixon's 1972 re-election campaign, before Watergate was even a gleam in Gordon Liddy's eyes. A time of war and of an increasingly frustrated and suspicious anti-war movement. It was my first year as a reporter, and the whole episode started with a cab driver from Staten Island.
As historian and frequent Slate contributor David Greenberg recounts it in his thoughtful book Nixon's Shadow, "the rumor [that Nixon had a secret plan to cancel the '72 presidential election] first appeared in print on April 5 in the Portland Oregonian, the Staten Island Advance and other Newhouse-owned newspapers. According to the item, the administration had asked the RAND Corporation ... to study whether 'rebellious factions using force or bomb threats would make it unsafe to conduct an election' and how the president might respond. Ron Rosenbaum, a reporter from the Village Voice, heard about the article from a Staten Island cab driver and investigated. He reported in The Voice on April 16 that RAND and the administration denied that any such study existed, but then playfully pointed out that they would surely deny it if it were true. Rosenbaum added that the country would just have to wait until 1972 to see."
Lesson here: Don't get too "playful" when writing about conspiracy theories. The problem with being "playful" back then was that much of the anti-war movement read the Voice at the time, and my story ignited a firestorm of paranoia. Soon there were "documents" of dubious authenticity circulating that purported to be RAND memos outlining plans to round up and lock up leaders of the anti-war movement. Eventually Pat Moynihan, then a Nixon consigliere, thundered against the rumor as an example of the intrusion of irrationality into politics.
The thing is, there's nothing wrong with planning for "continuity of government," especially in the nuclear age. Planning for continuity doesn't necessarily mean plotting a coup, although that's the way my story was read and spread. (Of course, meanwhile—proving that reality can outrun paranoia—the Nixon administration was planning to subvert the election, anyway, with the assortment of illegal actions and dirty tricks that became known as Watergate.)
Still, there's nothing I feel the need to apologize about for pursuing that story then (or this one now). Indeed, it was marginally possible back then, when the anti-war movement had become massive and some were turning to violence, that the RAND Corp. might have been involved in planning how to maintain "continuity" in the face of violent disruptions.
But the fact that the extreme worst-case scenario didn't happen in 1972 (no coup attempt) left one big question unanswered—and NSPD-51 illustrates it still hasn't been settled in any satisfactory way: What are the contingency plans for holding or postponing a national election in the midst of a traumatic national emergency?
I've studied the actual presidential directive, which you can find here.
In many respects, it's innocuous. It doesn't, for instance, tamper with the procedures for presidential succession in case, say, the chief executive and vice president are killed. And there's a value to requiring that every government agency prepare a plan to deal with a catastrophe.
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.
Good point. And then there are the final two provisions of the NSPD, which mysteriously refer to unseen secret "annexes" to the directive. Needless to say, if what they've made public is so shameless in its disregard for the Constitution, the following two sections on secret provisions don't allay suspicion:
(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.
So, how many secret annexes are there in addition to "annex A," and what kinds of things do they say that even the paranoia-inducing public document can't include?
Here's where Jeff Kosseff of the Portland Oregonian comes in. In an e-mail to me, he said he believed he was the first mainstream media reporter to pursue the classified annex issue (although Charles Savage reported on the disturbing public aspects of the directive itself in the Boston Globe in May).
Kosseff told me he got onto the story when Oregon Rep. Peter DeFazio expressed puzzlement that he was having trouble seeing what was in the classified "annexes." DeFazio was a member of the homeland security committee and cleared to read classified material in a supersecure "bubble room" designed to prevent any kind of surveillance. But DeFazio's initial request was, as Kosseff reported, "denied" by the White House, which cited "national security concerns."
DeFazio said this was the first time he had been denied access to classified documents. He brought in the chairman of the Committee on Homeland Security, Bennie Thompson, and the chairman of the Homeland Security Subcommittee on Management, Investigation and Oversight, Chris Carney, to back his request for access to the classified annexes.
In a phone conversation, Jeff Kosseff told me the latest development. In August, these requests were denied as well. On grounds of "national security."
I don't want to be alarmist, I have no evidence there's a coup brewing. But I think the American people and their congressional reps deserve some say in how they will be ruled when the ordinary rules go out the window in a national emergency. For one thing, what will happen to the Bill of Rights' guarantees of individual liberty and the courts that are supposed to enforce them?
If you ask me, setting aside any paranoid fantasies, it is clear on the most basic level—read it yourself—that NSPD-51 is the creation of irresponsible incompetents, bulls in the china shop of our constitutional framework. It is a recipe for disaster. For a catastrophe of governance that would match whatever physical catastrophe it followed and threaten the re-establishment of constitutional democracy. It would make the partisan warfare over the 2000 election in Florida seem like child's play. We might recover from a disaster but we might never recover from the "continuity coordination" that followed, "coordination" that could forever undermine any faith in the actual continuity of constitutional liberty in America since it would put it at the mercy of any president who wants to "coordinate continuity" rather than govern legally.
I think it's urgent that we bring these questions out of the shadows of phony comity. I'd urge readers to call or e-mail their members of Congress and senators now. Call for an emergency joint congressional hearing to end this farce, give us some transparency about what our government will do if we suffer another 9/11. Let all branches of government participate in the attempt to reach some consensus on rational and effective continuity planning. Something more specific and sophisticated than the clumsy but dangerously Orwellian "Continuity Coordination Committee."