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NSPD-51 and the Potential for a Coup d'état by National Emergency

By William H. White
January 27,
 
NOTE TO THE READER:  This paper addresses the possibility of a coup d'état by national emergency before the end of Bush's last year in office, citing recent institutional actions that can be reasonably interpreted as being consistent with and preparatory to such an undertaking. These actions, all occurring since Bush's reelection, include among others:
 
1) claiming by executive order emergency powers unauthorized by Congress;
 
2) contracting for the construction of high capacity detention centers throughout the country;
 
3) conducting nation-wide mass arrest exercises;
 
4) obtaining from Congress removal of legal impediments to the indefinite detention of US citizens without trial;
 
5) obtaining from Congress the authority to use federal troops for domestic police duties, by nullifying the Posse Comitatus Act of 1878; and,
 
6) obtaining from Congress the authority to use national guard units, without the consent of state's governor, in that or any other state. While these and other actions cited here have alternative, plausible explanation, and those participating in them may be entirely unaware of the darker ends to which their work may be put, nevertheless each is troubling and collectively they demand serious assessment as a potential threat to both our constitutional republic and its democratic governance, especially in light of the Bush administration's record of unlawful behavior.
 
The reader is therefore asked to give this careful consideration because the eternal vigilance necessary to protect our liberty is better served by reasonable suspicion than by enduring trust.
 
Introduction
 
       While a responsible President might deal with a real emergency using necessary measures within limited areas for an appropriate duration, the concern here is with the abuse of such power, by which a real or contrived emergency is used as pretext to exercise over-broad powers on a national scale for a duration that adversely affects constitutional governance, including national elections and due process.
 
National Security Presidential Directive 51 (NSPD-51) on May 9, 2007
 
       Can you think of anyone better than George W. Bush with whom to entrust the dictatorial powers hinted at in NSPD-51? Or perhaps you are unwilling to trust anyone with such powers, even Bush. That is not a option in NATIONAL SECURITY PRESIDENTIAL DIRECTIVE 51 (NSPD-51), signed by Bush and released without comment by the White House on May 9, 2007.
 
To quote from NSPD-51: “This policy establishes ‘National Essential Functions,’ prescribes continuity requirements for all executive departments and agencies, and provides guidance for State, local, territorial, and tribal governments, and private sector organizations in order to ensure a comprehensive and integrated national continuity program that will enhance the credibility of our national security posture and enable a more rapid and effective response to and recovery from a national emergency.” What one would expect, but for some of its few details.
 
Bush: I am The Coordinator
 
        Under NSPD-51, during a national emergency only limited ‘National Essential Functions’ of government will continue, which may or may not include Congress and the courts. NSPD-51 assures us: “Enduring Constitutional Government 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...” This “matter of comity,” which usually refers to the informal and voluntary recognition of jurisdiction among courts, is troublesomely ambiguous in this context.
 
Is Bush claiming that he, rather than the U.S. Constitution as interpreted by the Supreme Court, determines which functions the three branches of the federal government shall perform as well as the checks and balances among them?  Does the president decide for himself, as he "coordinates", which laws and court orders to faithfully execute? If the emergency event does not critically disrupt federal government operations, does Bush's NSPD-51 envision still limiting government operations to ‘National Essential Functions’? Is this executive order lawful since it overrides the National Emergencies Act, creating a new position of National Continuity Coordinator without congressional authorization?
 
The Plan: Now You See It; Now You Don't
 
        NSPD-51 claims that it "provides guidance” to state and local governments, when in fact it does the opposite because it revoked the then existing Presidential Decision Directive 67 of October 21, 1998 ("Enduring Constitutional Government and Continuity of Government Operations"), including “all Annexes thereto.” And replaced them with NSPD-51, along with: “Annex A and the classified Continuity Annexes, attached hereto.”
 
But then the rabbit disappears as NSPD-51 soldiers on: “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.” In other words, all the details are secret and even the non secret “Annex A” remains undisclosed by the White House.
 
        Having revoked without explanation the nation’s then existing emergency plan for continued national governance on May 9, 2007, Bush’s NSPD-51 calls for: “The Plan shall be submitted to the President for approval not later than 90 days after the date of this directive.” One assumes, during this lapse in emergency plans, no emergency was expected, or at least presented less risk than leaving that old Clinton plan in place. Since the national media, except one story each in the Washington Post and Boston Globe, have ignored NSPD-51, Bush has not bothered to explain any of this.
 
        Especially if such explanations might raise questions about what was so unacceptable in the existing plan that it needed to be revoked before finishing work on the new plan. Does this serve to rush the review of one of the most complex and sensitive plans in government in an attempt to slip something by the rest of us?
 
Or, more ominously, does it remove some impediment to contemplated action? Whatever the motive, abruptly revoking the existing plan, while mandating a new plan within 90 days, indicates the same unfortunate mix of  high optimism and low competence that characterizes much of the Bush administration's planning record. Clearly Bush is confident he can do far better than Clinton, whose administration, including all executive departments, labored for years on that old plan. Both NSPD-51 and Presidential Decision Directive 67 contain secret material, so much of the old plan may even be in the new plan, who knows?
 
Congress in the Dark, As Usual
 
        Among those who do not know are members of the House Committee on Homeland Security. The Bush administration has repeatedly denied the committee access to NSPD-51, about which  Oregon Rep. Peter DeFazio (D) complained in a speech on the floor of the House of Representatives. What we do know is those 90 days passed without a new plan approval being announced. Perhaps no plan gives the president exactly the maximum power and minimum accountability desired, with the Clinton plan revoked and Bush's plan whatever he says it is; or, perhaps the plan's approval was secret as well. Apparently, the "matter of comity" among the three branches of government, referred to in NSPD-51, does not include allowing NSPD-51 to be read by members of Congress, which the Congress, in a continuing pattern of timid inaction, has not challenged.
 
"Any incident, regardless of location ..."
 
        An almost entirely secret directive, NSPD-51 can be invoked when the president decides “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” occurred. Bush alone will decide when he must assume this burden, though perhaps only upon prayerful contemplation during the time saved not having to consult Congress. In addition, because of a change to the Insurrection Act of 1807, enacted as part of the 439-page 2007 Defense Authorization Bill signed into law in October 2006, Bush need no longer obtain a governor’s consent to take control of a state’s national guard units.
 
This same bill overturns the Posse Comitatus Act of 1878, which limited the use of US military forces within the United States for law enforcement, concern about which ignored by corporate media. In addition, Bush issued an executive order on July 17, 2007 authorizing the government to seize the assets of anyone "undermining efforts to promote economic reconstruction and political reform in Iraq" under provisions of the International Emergency Economic Powers Act. Could this include critics of the Iraq war, whom Bush has repeatedly accused of undermining the war effort?
 
        Indicative of Bush's state of mind with regard to suspending a constitution and declaring emergency rule is his comment three weeks after Musharraf suspended the constitution, arrested thousands of political opponents, and fired of the Supreme Court in Pakistan: Bush, ". . . He’s also advanced democracy in Pakistan. . . . He hasn’t crossed the line. As a matter of fact, I don’t think that he will cross any lines." 
 
Whatever and Whenever The Decider Decides
 
        When might Bush declare a national emergency under NSPD-51? My own guess would be Spring 2008, after Bush is "forced" to attack Iran, perhaps with nuclear weapons, and Iran then fails to cooperate, attacking US ships in the Gulf and Mediterranean instead of accepting our offers of assistance. Even if Iran denied Bush his basic objective by refusing to be goaded into reacting beyond its own borders, the resulting global economic chaos and spontaneous popular reactions beyond Iran could compel Bush to invoke NSPD-51, quite apart from whatever our new enemy might undertake.
 
On the other hand, under NSPD-51 any provocation of Bush could lead to him creating a pretext for declaring a national emergency. For example, Ralph Nader quotes Massachusetts Rep. John W. Olver (D), who has a PhD from MIT, when presented with the votes of 13 Town Meetings [real Town Meetings, not the media events staged for candidate performances] in Olver's congressional district calling for impeachment of Cheney and Bush, Olver responded that he opposed any impeachment move against Bush because "the current autocratic executive [Bush] would attack Iran from the air, declare a national emergency, institute martial law, and call off the 2008 elections were the Democrats to initiate impeachment." Or, perhaps we have a national emergency for as yet unknown reasons, maybe in the late summer when likely replacement administrations are judged by Bush/Cheney to be unacceptable; and then, as the national emergency begins to unravel, we attack Iran. The essential assessment is that we have reached a point where the possibilities are vast and unpredictable precisely because its all up to Bush; he is The Decider.
 
Beyond Our National Experience
 
        This section briefly speculates about the consequences of the abuse of national emergency powers to appreciate better how recent events may be leading to it.
 
        Should Bush declare a national emergency and begin exercising the many powers available to him in law, as well as the ever expanding "inherent" powers he claims by fiat, our nation could swiftly cross into a world increasingly difficult to predict, largely beyond our national experience, except perhaps for our revolution and civil war, subject to ad hoc, unchecked decision making, with genuine rule of law no longer an available guide. It would likely become increasingly difficult, in the absence of reliable information, to understand and deal with the originating crisis, however real or contrived. And to distinguish it from the difficulties arising from the declaration of a national emergency itself.
 
        However, this sort of thing has occurred in many countries, with much the same result likely here: a self-sustaining crisis, in which the chief rationales for continuing the national emergency are the effects of the national emergency themselves, compounded by errors in governance and crimes by those who seized power, sustained by supporters profiting from it and their fear for what would happen to them should they end it.
 
        In the short term, one can imagine Congress, demonstrating its usual wisdom and courage, expressing concern about the evidently large, though secret, number of American citizens "detained", surprise at the scope of firearm and asset seizures, discomfort with the pace of executions under the Military Commissions Act of 2006, and outrage at being locked out of its capital offices due to a classified biological threat of undetermined duration, thus preventing Congress from voting to set benchmarks for Iran and to demand our readmission to NATO.
 
        On the other hand, Congress would likely find some comfort in the "delay" of the 2008 elections, given Bush's decision to allow all incumbents, including those temporarily detained, to remain in office, which many in Congress would praise for its "bipartisan comity", and urge us all to await the president's determination when it is safe for Congress and the Supreme Court to actually meet again. Just as many in corporate American would appreciate the need to "defer" collecting capital gains and corporate taxes and to "ease" enforcing regulations in the interests of helping the economy in a time of national crisis.
 
        In addition to inaction by the intimidated and support of the misled, this tyranny, as all tyrannies, will no doubt have its servile enablers, among them: careerists who see opportunity in national tragedy; pathological authoritarians who welcome roles in a police state; and, common criminals who know a Kleptocracy when they see it. Besides, how could anyone resist the perfectly Orwellian logic of declaring a dictatorship to insure "Constitutional Continuity" for the “homeland,” while setting aside the actual Constitution of the United States?
 
Perhaps not The Federalist Society, with emergency appointments to newly vacant judgeships dancing in its members' heads, some may well continue to praise the glories of a "unitary executive", concocting judicial theories that explain how its all utterly necessary, perfectly logical, and manifestly constitutional, despite the fact that control of executive power is at very core of the history, architecture, and wording of our Constitution.
 
        The longer term prospect, if such a coup were to succeed at all, would likely include national decline and insurrection, with an even more unpredictable array of international consequences, starting with a widening war and global economic boycott.
 
Building Those Detention Centers, For One and All
 
        Whatever unknowable future an inappropriate declaration of national emergency might bring, clearly those contemplating such a declaration realize many are going to be profoundly unhappy with such a turn of events. And that may be why Kellogg Brown & Root, a Halliburton subsidiary, is already building detention centers around the nation to “support the rapid development of new programs” that could accommodate those incompatible with Constitutional Continuity, the dead-enders who actually protest or resist, plus the usual suspects who might think to object.
 
OPERATION FALCON: Practice Makes Perfect
 
        But how would all those potential incompatibles, certainly tens of thousands and likely far more, find their way to an appropriate detention center? After all, the Bush administration has managed to prosecute only a handful of businesses for hiring illegal aliens who number in the millions. Its clearly a matter of priorities.
 
So, despite such distractions as hurricane Katrina, the Justice Department has been conducting mass arrest exercises code named Operation Falcon, (Federal and Local Cops Organized Nationally), whereby thousands of law enforcement officers from federal, state, county and local agencies arrested some 10,000 individuals within seven days, working from lists provided by the U.S. Marshall’s Service, all coordinated to commence across the country simultaneously. Since practice makes perfect, four mass arrest exercises have been conduced: Two national (Falcon I April 4-10, 2005 arresting 10,340; Falcon II April 17-23, 2006 arresting 9,037); and one “eastern half of the country” (Falcon III October 22-28, 2006 arresting 10,733).
 
        The latest, Falcon IV (renamed Falcon 2007), continues narrowing the focus with regional exercises, such as Operation FALCON-Baltimore (February 2007, arresting 195)and Operation FALCON-Indianapolis (May 2007, arresting 283) as well as 27 other regional exercises  (from July 8, 2007 to September 16, 2007), arresting a total 6,406 "fugitives", including "235 for not registering as sex offenders" and "300 documented gang members" making for excellent press.
 
In fact, the main focus of Falcon 2007 was gang members and sex offenders, neither of whom were prepared to match the federal public relations effort, which includes raw video footage (more raw footage) passed to corporate media that shows police raids with positive commentary, no questions asked and no critics heard. What has not changed is the operational profile: federally prepared arrest lists, distributed to local, state, and federal police agencies, who arrest as many as possible within a week's time, usually starting before dawn on Sunday morning.
 
        What can not be found among these data and reports is mention of any legitimate law enforcement purpose uniquely served by these coordinated, mass arrests, where little or no connection exists among the targets. According to the then Attorney General Alberto R. Gonzales, “Operation FALCON is an excellent example of President Bush’s direction and the Justice Department’s dedication to deal both with the terrorist threat and traditional violent crime,” but failing to mention that none of the over 30,000 arrests was for a terror-related crime. While some arrested were serious criminals, most were of the non-responding warrantee, technical parole violator, and support payment delinquent sort, soon released. The important element here appears to be getting operational experience and, perhaps most critically, habituating state and local police agencies to conducting mass arrests from lists provided by the federal government.
 
In the eastern regional Falcon III alone, 103 state agencies, 430 county sheriff's offices/departments and 482 police departments did just that according to the U.S. Marshals Service web site. At the current pace, perhaps Falcon 2007 was the last drill and then the real thing: Operation Falcon V (or Falcon 2008). Throughout history mass arrests are solely an instrument of political repression, just as they are here.
 
Operation Falcon V: This is Not a Drill
 
        So its likely, when Bush addresses his fellow citizens after declaring the national emergency, many of his critics will be listening most attentively to detention camp loud speakers. As for how detainees will be treated, one can assume every effort will be made to maintain our current standards for indefinite detention without trial and torture assisted interrogation, where little slip-ups under the press of numbers and emergency conditions are likely to be of little consequence.
 
No Need to Worry, Its Only Temporary
 
        What is certain, should a coup d'état by national emergency take place, is it will be denied even as it unfolds, and this is likely to be followed by assurances it will be temporary, lasting "not one day more than it needs to", followed by complaints about disappointing levels of cooperation (never mentioning any acts of resistance) being responsible for prolonging the state of emergency, threats of severe punishment and asset seizure for those harboring fugitives wanted by the authorities, and finally appeals to turn in others if you want your own relatives released from detention or your property/assets returned.
 
        To sustain a permanent state of national emergency, Bush will likely take every opportunity to claim it is temporary. One can imagine him insisting he did it to protect the nation and to restore order, even as he attacks the nation's most vital institutions, arrests law abiding citizens, and causes increasing chaos. And an even more disciplined corporate media will ignore these blatant deviations from reality, except to repeat them again and again.
 
Corporate Media: Dallas Uber Alles
 
        What is likely to be important in most corporate media, continuing its de facto censorship,  is demonstrating our determination to carry on, starting with the most common advice to all good citizens: "keep shopping." While its likely every effort will be made to retain the trappings of the old republic, perhaps our national anthem with its "the land of the free, and the home of the brave" might be a bit much for a police state trying to keep its population fearful, so one can imagine an exciting national contest conducted by corporate media, as a public service, to select the proper anthem for our new world order.
 
I'm hoping for something stirring along the lines of "Deutschland Uber Alles", except with a touch of Texas twang as in "Dallas Uber Alles", in an arrangement using fewer trombones plus a weeping steel guitar. However, since this is such an important decision, our new anthem, with its companion homeland prayer and logo, should be selected by ‘We the People of the United States’ from among three finalists chosen by our First Lady, in our first-ever national referendum, proving yet again our commitment to democracy and putting all those new voting machines to use in November '08 after all.
 
Or, Resist
 
        Instead, you might send this, or like materials, to others including your congressional delegation as well as the press, to share your concerns and to warn about the potential danger Bush’s NSPD-51 presents, and to demand steps be taken to prevent it. Since the courts are hopelessly slow given the immediate danger, Congress must be made to do its duty. And we must do our duty and demand Congress end its reluctance to stand up to Bush's repeated, escalating, bullying contempt: if its unnecessary, it should be easy; if its not easy, it is all the more necessary.
 
        Many argue both parties are so corrupted by corporate money and self-service that Congress is worse than useless, passing the very laws that created this danger and failing in its oversight duties to standup to Bush on any matter of principle. Whatever Congress did, it did not elect and reelect Bush: we did, or at least let it be close enough to be gamed.
 
Luckily one need not be a saint to come to the aide of our country in times of crisis, so even Congress can raise itself to resist tyranny, with your help and encouragement. And Bush and Cheney need to be confronted immediately, with the objective of using existing congressional power and establishing additional safeguards, formal and informal, to prevent a coup d'état by national emergency. Better to prevent what later some may claim was never going to happen, than to suffer betrayed good faith, with the appalling costs of undergoing and undoing this grave folly, which Bush appears to be edging toward, as relentlessly as he undertook the invasion of Iraq from the first days of his administration.
 
        This government has nothing to fear, except your courage to join in spirit those who stood upon Concord Bridge and fired a shot heard around the world, this time within the law to protect the law itself. Now it is our time to act.
 
        I would suggest the following for consideration as demands to be made of our Congress by calling our representatives regularly until Congress acts to control Bush:
Restore Posse Comitatus Act by enacting US Senate Bill S.513 and US House bill H.R. 869;
Repeal the Military Commissions Act of 2006 and restore habeas corpus for all by enacting bill H.R.3835;
Hold impeachment hearings on Cheney; write to John Conyers, chairman of the House Judiciary Committee to urge hearings be held on House Resolution 333 introduced by Rep. Kucinich in a speech on the floor of the House of Representatives on November 6, 2007; and, to House Speaker Pelosi to demand she end her "impeachment is off the table" dictum, a de facto suspension of the impeachment clause of the US Constitution;
Include in relevant appropriation bills wording such that no funds can be spent for a declared national emergency, except upon a vote of Congress to invoke, if congress is in session, and to continue such emergency only upon a continuing resolution by Congress every 30-days;
Congress should hold in contempt the head of any department or agency of the executive branch, including the White House, for failing to respond to subpoena; and withhold some or all funds and appointments from those departments, when such subpoena is found to be enforceable by the courts;
Establish an office of special prosecutor, to be appointed by and answerable to a federal district court, with independent funding directly from Congress, to investigate high crimes committed by any member of the executive branch while exercising their official duties, including issuing or obeying illegal orders resulting in torture, murder or kidnap or violating a treaty to which the US is a signatory, where such violation prescribes capital punishment or imprisonment of up to 10 or more years;

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