The chiefs of FEMA, the Federal Emergency Management Agency, evidently decided they did not want to be confronted with reporters asking embarrassing questions about their handling of the disastrous fire in southern California. Having been severely criticized for its previous mishandling of the Katrina disaster in New Orleans, the FEMA chiefs placed their own fake reporters in their phony news conference. FEMA employees posing as reporters and asked favorable questions to the FEMA deputy director. Real reporters were given only 15 minutes notice, and only FEMA staff asked the questions.
White House personae criticized this fake news conference, so evidently the idea was FEMA's alone. This ploy reveals a disturbing arrogant mentality in the federal government. News conferences are a way to make government agencies accountable to the public. They not only provide information to the public, but also become accountable to its decisions. When a government agency avoids being confronted with tough questions, this implies that the agency puts itself in the position of master rather than a servant of the people.
Much worse is usurpation by presidential power. An October 19, 2007, article in Slate asks, "Who Will Rule Us After the Next 9/11? The reality of NSPD-51 is almost as bad as the paranoia." The article was summarized in the November 2 issue of The Week magazine. The Slate article reports on fears expressed in the blogosphere, perhaps paranoid, that if there is a national emergency, the federal chief could suspend the Constitution.
These fears are based on a decree issued by the President on May 9, 2007, the National Security Presidential Directive 51, which is also called the "Homeland Security Presidential Directive 20 on National Continuity Policy". By that decree, "the Continuity of Government Readiness Conditions (COGCON) system establishes executive branch continuity program readiness levels, focusing on possible threats to the National Capital Region. The President will determine and issue the COGCON Level."
Thus the President may decide whether there is a national emergency, in which case the Directive authorizes him to assure the continuity of government. Alarming discussions of NSPD-51 in Internet blogs refer to secret clauses that the White House has not disclosed even to Congress.
Clause 23 of the Directive states, "Annex A and the classified Continuity Annexes, attached hereto, are hereby incorporated into and made a part of this directive." Clause 24 says, "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."
As Slate author Ron Rosenbaum notes, the Directive authorize the president to coordinate the activities of the other branches of government "as a matter of comity," which could mean that the other branches cede jurisdiction to the president, contrary to the Constitution.
Reporter Jeff Kosseff of the Portland Oregonian, said to be the first mainstream reporter to investigate the classified annexes, did so after an Oregon member of the Congressional homeland security committee was denied access to the secret clauses.
This Directive was not approved or even reviewed by Congress or the Supreme Court. There is no Constitutional authority for it. It is the president usurping all power to himself. The only question is whether the U.S. military would enforce it.
This is how the Nazis gained power in Germany. The state chiefs faked a terrorist attack, and then decreed a national emergency. But in their case, the German constitution authorized a state of emergency. The U.S. Constitution has no clause authorizing a state of emergency or any "comity" with the other equal branches of government. NSPD-51 is legislation, usurping the power of Congress. This is nothing but the arrogance of a chief of state deciding he is above Congress, the Supreme Court, and even the Constitution. The very existence of NSPD-51 secret clauses implies there may no longer be a real Constitution, since the Constitution could possibly remain in effect only by the president's will.
Of course if there is a catastrophic emergency, we need to have a planned response. But it is up to Congress to enact legislation, not a presidential fiat. Constitutional powers are sufficient to deal with catastrophes such as occurred on September 11, 2001. The existence of secret clauses not only fuels paranoia but is inherently a violation of the most fundamental principles of the rule of law and the consent of the governed.
Evidently Congress has done nothing to overturn this decree. Most Americans have not been told about this, despite many Internet discussions. The fact that there has been little reaction against NSPD-51 is almost as alarming as the decree itself.
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FRED E. FOLDVARY, Ph.D., is an economist and has been writing weekly editorials for Progress.org since 1997. Foldvary's commentaries are well respected for their currency, sound logic, wit, and consistent devotion to human freedom. He received his B.A. in economics from the University of California at Berkeley, and his M.A. and Ph.D. in economics from George Mason University. He has taught economics at Virginia Tech, John F. Kennedy University, Santa Clara University, and currently teaches at San Jose State University.
Foldvary is the author of The Soul of Liberty, Public Goods and Private Communities, and Dictionary of Free Market Economics. He edited and contributed to Beyond Neoclassical Economics and, with Dan Klein, The Half-Life of Policy Rationales. Foldvary's areas of research include public finance, governance, ethical philosophy, and land economics.
Foldvary is notably known for going on record in the American Journal of Economics and Sociology in 1997 to predict the exact timing of the 2008 economic depression—eleven years before the event occurred. He was able to do so due to his extensive knowledge of the real-estate cycle.