NSPD 51 / HSPD 20

Overview

NSPD 51 / HSPD 20 is a policy statement issued by US president George W. Bush on 2007-05-09, as both a National Security directive and a Homeland Security directive. It sets forth guidelines under which the US government would continue operating in the event of a national emergency; these guidelines include essentially unlimited authority for the president.

It was apparently released by the President on his own authority, without any kind of approval process.

Status

Apparently there has been a national emergency in effect continuously since 2001-09-14 (renewed every subsequent year by Bush and then Obama), so the provisions of the NSHSPD are ready to be put into effect at any time – or would the minor difference in phrasing, "national emergency" vs. "catastrophic emergency", actually make a difference? Who would be in a position to decide the legality of an invocation of this directive, and what accountability can be brought to bear on that person should they choose to decide that such an invocation was legal?

Aliases/Keywords

• NATIONAL SECURITY PRESIDENTIAL DIRECTIVE - NSPD51
• HOMELAND SECURITY PRESIDENTIAL DIRECTIVE - HSPD20

Key Concepts

• The definition of Catastrophic Emergency: 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.
• Continuity of Government (COG): a coordinated effort within the Federal Government's executive branch to ensure that National Essential Functions continue to be performed during a Catastrophic Emergency.
• Continuity of Operations (COOP): an effort within individual executive departments and agencies to ensure that Primary Mission-Essential Functions continue to be performed during a wide range of emergencies, including localized acts of nature, accidents, and technological or attack-related emergencies.
• Enduring Constitutional Government (ECG): 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.
• National Essential Functions (NEFs): that subset of Government Functions that are necessary to lead and sustain the Nation during a catastrophic emergency and that, therefore, must be supported through COOP and COG capabilities.
• Primary Mission Essential Functions (PMEFs): those Government Functions that must be performed in order to support or implement the performance of NEFs before, during, and in the aftermath of an emergency.
• Continuity of Government Readiness Conditions (COGCON), a system that "establishes executive branch continuity program readiness levels, focusing on possible threats to the National Capital Region" – from the sound of it, something similar to the color-coded terror threat level system but reporting on governmental readiness to deal with threat rather than the threat itself, though the language is vague enough that it remains to be seen what measures will be required by the COGCON system under various conditions.

The Real Threat: An Inside Job?

Many have interpreted this directive as the President giving himself the ability to assume unlimited authority – by:

• defining the president's authority as unlimited in a "catastrophic emergency", and
• giving the president the authority to declare such an emergency.

Both of the following must be evaluated in light of this directive in order to determine if this theory holds water:

• the nature of the president's power with regard to declaration of catastrophic emergency
• the nature of the powers granted to the president when a catastrophic emergency has been declared

First, what does the directive say about declaring an emergency?

• The definition of catastrophic emergency requires "extraordinary levels of mass casualties, damage, or disruption severely affecting the U.S. population, infrastructure, environment, economy, or government function". Presumably, nobody has the power to declare a catastrophic emergency if it doesn't meet those criteria.

The mildest conditions which meet the requirements for a catastrophic emergency, then, would seem to be "extraordinary levels of disruption severely affecting the economy" or "...severely affecting government function". Does this allow Bush to, say, declare that a really bad day on Wall Street represents "extraordinary levels of disruption severely affecting the economy"? Or perhaps the next major scandal involving multiple members of the administration would involve "extraordinary levels of disruption severely affecting government function"? How can we determine what verbal stretching and twisting the president might be able to get away with, especially in the context of a disruptive situation (of a level sufficient to cause confusion but not representing any kind of near-term national threat)?

• As far as the power to declare a catastrophic emergency, assuming that actual conditions arguably meet the criteria above, the directive itself seems only to go so far as establishing the COGCON system, which seems merely to be a system for determining readiness levels, not threat levels, and giving the president the ability to "determine and issue the COGCON Level"..

However, according to the DMSO Mission Assurance Lexicon, COGCON is:

A rating system specifically designed to relate COOP actions to threat and alert posture. The new system, COOP COGCON, shows actions designated by ratings of 1 through 4, with 1 being the highest, that should be accomplished when the government’s "level of concern" changes from a range of Guarded (i.e., COGCON 4) to High (COGCON 1).

This sounds very much like a threat level assessment of the sort which could be used to order that Catastrophic Emergency measures be taken. More research is needed to find out just what degree of control is given to the president by giving him the ability to set the COGCON level. Primary question: where is the substance of COGCON? Either way, one of the two documents is in error: the Lexicon document explains COGCON as defining "actions designated" to be taken under different "level(s) of concern", while the Presidential Directive implies that COGCON does nothing more than establish "executive branch continuity program readiness levels".

It should be noted that using underhanded text-shuffling tactics to enhance his own powers as president would be entirely consistent with earlier actions by Bush, both while in office and prior to arriving there (need article about Bush's classifying of his own official papers as Governor; also the trick of making an erroneous claim of fact, which the media then repeats as fact without checking it, which Bush then reiterates later as fact citing the media as a source).

comment

anonymous user 199.233.80.251 said: Please just state facts and not your political views when adding to this document otherwise these documents become a sounding board for your personal opinions......thank you.

response

No, sorry, opinionated commentary is part of the purpose of Issuepedia; please read Issuepedia:Arguing for more details. If you believe a piece of opinionated commentary to be wrong, you are free to offer a counterargument. --Woozle 11:40, 10 June 2010 (UTC)

Links

Reference

• 2007-05-09 official White House press release
  • alternate with nicer formatting, on the Federation of American Scientists web site

Discussion

• 2007-05-29 video Bush approves new emergency act (NSPD51 & HSPD20): CSPAN interviews Jerome Corsi, a conservative activist who believes that the directive is unconstitutional.
• 2007-05-23
  • Bush grants presidency extraordinary powers: "Directive for emergencies apparently gives authority without congressional oversight"
  • Bush makes power grab by Jerome Corsi (who is, unfortunately, not a credible source; see this)
    • 2007-05-24 commentary (blog entry)
  • Bush Re-Authorizes Martial Law Provisions: "Americans have officially been living under a dictatorship since at least 1933." by Paul Joseph Watson, Steve Watson & Alex Jones