Executive Directive 51or, The Third Term of George W. Bush

"Evil men, obsessed with ambition and unburdened by conscience, must be taken very seriously--and we must stop them before their crimes can multiply."
– George W. Bush
(Oct. 10, 2005)



Ok, so what really happens now? Can a duck really be lame if it invaded the pond in the first place and has lied, cheated, and stolen for the past seven years in order to maintain control of said pond? Why would an administration that obtained office by nefarious and unconstitutional means believe itself to be beholden to the statutes of that same Constitutional Law that they deliberately disregarded in the first place? Essentially, at this point, after achieving the staggering and tyrannical authority that the Executive branch currently enjoys without oversight and with impunity, why would Dick Cheney and George W. Bush relinquish their power - just because the yellowed piece of paper that they've never read and like to shred says they should? Unlikely.

It seems to me that the machinations of the 2008 Presidential campaigns are all just an exercise in futile optimism. When an administration has such disdain for democracy abroad and has shown outright contempt for it at home, why would anyone think that once its mandated "term" has reached its limits, it'll pack up and leave town without a fight? And, at this point, it's clear that the Legislative and Judicial branches have done little to challenge the Executive over the course of two illegal administrative terms. Therefore, not much will stand in the way of further subverting even the last, flimsy, remaining notions of democracy to which this country still clings.

So what are we in for over the upcoming months? A phony attack on Israel (or even here in the US itself) by Iran, ordered and orchestrated by the US government and executed by the CIA, and propagandized by the media, that will set off a new catastrophe in the Middle East with all players finally engaged full throttle? Perhaps there will be an assassination attempt on Democratic nominee Barack Obama's life, which, if (hopefully) unsuccessful would surely solidify his election and if (god forbid) successful would ensure a 1968-style descent into Democratic party chaos that would lead inevitably towards a McCain victory come November. Regardless of what actually comes to pass (hopefully neither of those terrible scenarios), one thing may be certain: at some point before the November elections, there could very well be a state of emergency declared in the United States. This is no small fear. In fact, unbeknownst to most Americans, the declaration of a state of emergency at this point could lead directly to the brutal and horrifying institution of martial law.

Does this sound too paranoid? Perhaps. But that's only because you may have never heard of the National Security and Homeland Security Presidential Directive (National Security Presidential Directive NSPD-51/Homeland Security Presidential Directive HSPD-20, or nicknamed simply, Executive Directive 51). As succinctly described by Wikipedia,

[The order], signed by United States President George W. Bush on May 4, 2007, is a Presidential Directive which specifies the procedures for continuity of the federal government in the event of a "catastrophic emergency." Such an emergency is construed as "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."

In case you don't know, a Presidential Directive is an executive order of the highest degree and has the "full force and effect of law." Furthermore, the signing of this directive was not reported on by any major media outlet, nor was it officially announced by the White House. The non-classified elements of Directive 51 were quietly posted on the White House website five days after it was signed, without even a whisper to (or from) the press. What is most striking about this new disaster plan is that all administrative power is placed solely in the doughy, clammy, and manicured hands of the President (with the Vice President, National Security Adviser, and new 'National Continuity Director' as top advisers) and thereby suspends the Constitutional insistence on three equal branches of government.

(Incidentally, coincidentally, or perhaps just obviously, Directive 51 can also refer to Adolph Hitler's Atlantic Wall project, wherein an "extensive system of coastal fortifications [was] built by the German Third Reich in 1942 until 1944 during World War II along the western coast of Europe to defend against an anticipated Anglo-American led Allied invasion of the continent from Great Britain.")

Jerome Corsi, the super-conservative, right-wing commentator and author of the John Kerry-bashing book Unfit For Command, was highly critical of Bush's new directive (when the news finally got out about it), stating on World Net Daily,

When the president determines a catastrophic emergency has occurred, the president can take over all government functions and direct all private sector activities to ensure we will emerge from the emergency with an "enduring constitutional government."

Translated into layman's terms, when the president determines a national emergency has occurred, the president can declare to the office of the presidency powers usually assumed by dictators to direct any and all government and business activities until the emergency is declared over.

Ironically, the directive sees no contradiction in the assumption of dictatorial powers by the president with the goal of maintaining constitutional continuity through an emergency.

The directive specifies that the assistant to the president for Homeland Security and Counterterrorism will be designated as the National Continuity Coordinator.

This newly invented top position of National Continuity Coordinator is further explained by Corsi:

That job, as the document describes, is to make plans for "National Essential Functions" of all federal, state, local, territorial, and tribal governments, as well as private sector organizations to continue functioning under the president's directives in the event of a national emergency.

Directive 51, at no point, makes any specific mention of Congress. This deliberate omission clearly indicates that the President is in no way beholden to the House or Senate in a supposed time of crisis and that no consultation with either is required for him to declare a state of emergency or to declare an end to such a state. This leaves the President with open-ended and unregulated powers which he may bestow upon himself at any given time.

Majorie Cohn, who just happens to be the president of the National Lawyers Guild, a professor at Thomas Jefferson School of Law, and an expert analyst on human rights, international law and US foreign policy, reveals that, if enacted,

[the Directive] would place all governmental power in the hands of the President and effectively abolish the checks and balances in the Constitution.

If a "catastrophic emergency" - which could include a terrorist attack or a natural disaster - occurs, Bush's new directive says: "The President shall lead the activities of the Federal Government for ensuring constitutional government."

What about the other two co-equal branches of government? The directive throws them a bone by speaking of a "cooperative effort" among the three branches, "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." The Vice-President would help to implement the plans.

"Comity," however, means courtesy, and the President would decide what kind of respect for the other two branches of government would be "proper." This Presidential Directive is a blatant power grab by Bush to institutionalize "the unitary executive."

A seemingly innocuous phrase, the unitary executive theory actually represents a radical, ultra rightwing interpretation of the powers of the presidency. Championed by the conservative Federalist Society, the unitary executive doctrine gathers all power in the hands of the President and insulates him from any oversight by the congressional or judicial branches.

This 'unitary executive' concept essentially establishes an unrestrained monarchy in the event of the completely vague, so-called "catastrophic emergency" (which, by the way, only the President can determine). As Cohn goes on to explain,

The unitary executive dogma represents audacious presidential overreaching into the constitutional province of the other two branches of government.

This doctrine took shape within the Bush administration shortly after 9/11. On September 25, 2001, former deputy assistant attorney general John Yoo used the words "unitary executive" in a memo he wrote for the White House: "The centralization of authority in the president alone is particularly crucial in matters of national defense, war, and foreign policy, where a unitary executive can evaluate threats, consider policy choices, and mobilize national resources with a speed and energy that is far superior to any other branch." Six weeks later, Bush began using that phrase in his signing statements.

As of December 22, 2006, Bush had used the words "unitary executive" 145 times in his signing statements and executive orders. Yoo, one of the chief architects of Bush's doctrine of unfettered executive power, wrote memoranda advising Bush that because he was commander in chief, he could make war any time he thought there was a threat, and he didn't have to comply with the Geneva Conventions.

John Yoo, the rotund bastion of human rights responsible for contributing to the PATRIOT ACT and advocating that the President is free to interpret international treaties, laws, and conventions as he see fit, has been in the news a bunch lately due to recently leaked memos that reveal Yoo's argument for the legality of torture. In fact, Cohn writes that, "In a 2005 debate with Notre Dame professor Doug Cassel, Yoo argued there is no law that could prevent the President from ordering that a young child of a suspect in custody be tortured, even by crushing the child's testicles." What a sweetheart.

Charlie Savage, writing for the Boston Globe, addresses two eerily unanswered questions that could be posed regarding the new executive order, namely, "What circumstances would trigger implementation of the plan and what legal limits the White House recognizes on its own emergency powers." Savage continues,

Sharon Bradford Franklin , the senior counsel at the Constitution Project, a bipartisan think-tank that promotes constitutional safeguards, said the policy’s definition “is so broad that it raises serious concerns about when and how this might be used to authorize unchecked executive action.”

But [White House spokesman Gordon] Johndroe said it was necessary for a loosely-worded definition because the goverment can’t be sure what kind of emergency might arise.

“I don’t think you want to have anything in the directive that would tie the president’s hands from being able to implement emergency action,” he said.

The policy also does not contain a direct reference to statutes in which Congress has imposed checks and balances on the president’s power to impose martial law or other extraordinary measures.

For example, the policy does not explicitly acknowledge the National Emergencies Act, a post-Watergate law that gives Congress the right to override the president’s determination that a national emergency still exists, activating the president’s emergency powers.

The policy says that it “shall be implemented consistent with applicable law,” but it does not say which laws are “applicable.” Because the Bush legal team has pushed a controversial theory that the Constitution gives the president an unwritten power to disobey laws at his own discretion to protect national security, some specialists said that the vagueness of the policy is troubling.

Asked if the White House believes that the National Emergencies Act is a constitutional constraint on executive power and thus would apply, Johndroe repeated only that “Anything developed would be consistent with all applicable laws.”

So, basically, the President already has in place a policy by which he may seize control of the government of this country unconditionally and for as long as he wants for any reason whatsoever. And there's nothing anyone can do about it.

Long story short: we're all screwed.

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Don’t Move On. Start Over

Next Prez Must Make Bush an Unperson

by Ted Rall | CommonDreams | 2 April 2008

“No one owes obedience to a usurper government or to anyone who assumes public office in violation of the Constitution and the law. The civil population has the right to rise up in defense of the constitutional order. The acts of those who usurp public office are null and void.”

Article 46, Constitution of Peru

NEW YORK — Comedian Bill Maher is a brilliant contrarian. He dislikes George Bush. Yet his view of the stolen 2000 election is conventional, ahistorical and quintessentially American: Forget it! Move on! “Oh, Ted,” he replied when I mentioned the judicial coup d’état on his TV show, which aired October 3, 2001. “That’s so September 10th. It really is.”

It has been nearly eight years since the U.S. Supreme Court violated the Constitution by installing George W. Bush as president. Their ruling was immaterial. They shouldn’t have agreed to hear Bush v. Gore in the first place. Under Article II of the Constitution, Federal courts don’t have jurisdiction in election disputes. The state supreme courts–in that case, Florida–have the final word.

It’s tempting, as Maher suggested, to try to move past 2000. But we can’t. What followed doesn’t allow it.

When a ruler seizes office by extralegal means he rules the same way. Because he does not derive his power from the people–indeed, his rule relies on their passivity–he is not beholden to them. Selling the public on his policies is hard enough for a legitimately elected ruler; an illegal one has to resort to bullying, presented as a stern, autocratic triumph of the will. He is forced to order his lawyers to find legal loopholes using the most tortured reasoning imaginable. In the end, when citizens turn against him, the tyrant shrugs his shoulders. “So?” This is what the vice president replied when a reporter asked about polls showing that Americans have turned against the Iraq War. Cheney’s question was perfectly reasonable. Why should he care what we think? We didn’t elect him. He doesn’t owe us the slightest consideration.

Electoral illegitimacy begets illegitimate rule: Secret detentions and torture redefined into meaninglessness. Secret prisons. Ending habeas corpus, the right to have one’s case heard before a judge–a right English-speaking people had enjoyed for 800 years. Secret “signing statements” purporting to negate laws signed in public. Spying on Americans, lying about it to Congress, and then, after getting caught, trying to legalize it retroactively. Destroying evidence. An executive order granting the president the power to declare anyone–without evidence–an “enemy combatant,” then order that person imprisoned for life, or even assassinated.

Even if the next president has promised to end extraordinary renditions (which began under Bill Clinton), close Gitmo, outlaw torture and overturn the Military Commissions Act, which eliminated habeas corpus, he or she will surely be tempted to retain some of Bush’s beefed up new executive powers upon moving into the Oval Office. Who wouldn’t want to read their political opponents’ email and listen to their phone calls?

But let’s posit, for the sake of argument, that Bush’s evildoing comes to an end next January. There will still be a mess to clean up.

One million Iraqis and Afghans are dead. Tens of thousands more have been tortured and maimed. Thousands of dead soldiers; tens of thousands more grievously wounded. Millions of Americans have had their privacy violated. They deserve justice. We deserve justice. The war criminals, torturers and phone companies deserve due process. If there are consequences for driving fast and cheating on your taxes, after all, there surely ought to be a price to pay for urinating on an innocent man in a dog cage at Guantánamo.

America might want to move on. How can the rest of the world let us?

Bush v. Gore gave us an illegitimate president. Bush presided over an outlaw government. If we sit on our asses, as we’ve done since that weird, soul-crushing day in late December of 2000, illegality will be hardwired into the U.S. government. The country itself will become, like the Soviet Union and its wonderful freedom-guaranteeing constitution, a caricature of itself. “What is the difference between the Constitutions of the USA and USSR? Both guarantee freedom of speech,” the old Russian joke went. “Yes, but the Constitution of the USA also guarantees freedom after the speech.” A gangster regime presiding over the trappings of law and order is a vicious joke–illegitimate and ultimately doomed.

There’s one way–only one way–to avoid ratifying Bush’s legacy. The next president must do the following three things immediately upon taking office:

1. Issue an executive order declaring all laws and actions undertaken by the Bush Administration, the states and local municipalities (because many state and local ordinances are influenced by national politics) between January 2001 and January 2009 null and void.

2. Act quickly to restore the rule of law — freeing Gitmo inmates, offering compensation to victims of torture and rendition, order immediate withdrawals of U.S. troops from Afghanistan, Iraq, Somalia and other undeclared wars.

3. Create a cabinet-level department to investigate top officials and subordinates of the Bush interregnum for crimes they may have committed and refer them to the appropriate courts for arrest, prosecution and imprisonment.

Ted Rall is the author of the new book “Silk Road to Ruin: Is Central Asia the New Middle East?," an in-depth prose and graphic novel analysis of America’s next big foreign policy challenge.

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