White House revises post-disaster protocol
The policy requires all government agencies to have clear lines of succession if top officials are killed and be prepared to operate from a new headquarters within 12 hours of a catastrophe. They must be prepared "to lead and sustain the nation during a crisis" -- a charge ranging from "providing leadership visible to the nation and the world" to "bringing to justice perpetrators of crimes or attacks."
The policy replaces a Clinton-era "continuity in government" post-disaster plan. The old plan is classified, but security specialists and administration officials said the new policy centralizes control of such planning in the White House and puts a greater emphasis on terrorism spurring the catastrophe.
Bush quietly signed the new policy on May 4. The unclassified portion of his "homeland security-national security presidential directive" -- a special kind of executive order that can be kept secret -- was also posted on the White House website on May 9, without any further announcement or press briefings.
The new policy focuses on a worst-case scenario in which a terrorist nuclear bomb explodes without warning and wipes out much of the nation's top leadership. Older plans were instead premised on a Cold War-era long-range missile attack, presuming it would be detected in enough time to evacuate the president and other top government officials.
"As a result of the asymmetric threat environment, adequate warning of potential emergencies that could pose a significant risk to the homeland might not be available, and therefore all continuity planning shall be based on the assumption that no such warning will be received," the new policy states. "Emphasis will be placed upon geographic dispersion of leadership, staff, and infrastructure in order to increase survivability and maintain uninterrupted government functions."
The unexpected arrival of the new policy has received little attention in the mainstream media, but it has prompted discussion among legal specialists, homeland security experts and Internet commentators -- including concerns that the policy may be written in such a way that makes it too easy to invoke emergency presidential powers such as martial law.
Specifically, the policy creates a new "National Continuity Coordinator" inside the White House who is charged with ensuring all executive agencies have a plan by Aug. 4 to keep functioning if their leadership perishes in an attack. The coordinator is also directed to help Congress, the Supreme Court, and state and local leaders prepare for a worst-case scenario.
The policy designates the president's top adviser for homeland security and counterterrorism -- currently Frances Townsend -- as the national continuity director. It also directs Townsend to consult National Security Adviser Stephen Hadley and Vice President Dick Cheney.
The public portion of the new "National Continuity Policy" contains few details about how surviving officials would invoke emergency powers, or when emergency powers should be deemed to be no longer necessary so that the elected democracy can resume. The answers to such questions may be contained in a classified appendix which has not been made public.
The unanswered questions have provoked anxiety across ideological lines. The conservative commentator Jerome Corsi , for example, wrote in a much-linked online column that the directive looked like a recipe for allowing the office of the presidency to seize "dictatorial powers" because the policy does not discuss consulting Congress about when to invoke emergency powers -- or when to turn them off.
In addition, specialists at both the Heritage Foundation, a conservative think-tank, and the American Civil Liberties Union said they have taken calls and e-mails from people who are worried about what the new policy may portend.
James Carafano , a homeland security specialist at Heritage, criticized the administration for failing to inform the public that the new policy was coming, and why it was changing.
He said the White House did not recognize that discussion of emergency governmental powers is "a very sensitive issue for a lot of people," adding that the lack of explanation is "appalling."
But White House spokesman Gordon Johndroe said that because of the attacks of Sept. 11, 2001, the American public needs no explanation of such plans.
"It's well known that the vice president was in a secure, undisclosed location for a period of time for continuity-of-government reasons, so these considerations are not unknown to the American people in a post-9/11 world," he said.
Some homeland security and legal specialists say that anxieties about the new plan may be exaggerated. The government has had versions of a doomsday response plan dating back to the Cold War, although this is apparently the first time the White House has made a portion of the plan public.
"Any time any leaders are talking about the destruction of our government and the disruption of traditional ideas of representative government, that is something we all have to be concerned about and it should be discussed," said Michael German , ACLU policy counsel. "And that is one reason why I appreciate that this document has been made public."
The Bush administration in general "is very secretive," he added, "so I don't think we should be entirely critical of what's in [the plan] because I think we want to encourage them to release information like this."
Nevertheless, some legal specialists say that the White House should be more specific about its worst-case scenario plans, pointing out two unanswered questions: what circumstances would trigger implementation of the plan and what legal limits the White House recognizes on its own emergency powers.
The policy broadly defines a "catastrophic emergency" -- the triggering event for the plan -- as "any incident, regardless of location, that results in extraordinary levels of mass casualties, damage, or disruption severely affecting the
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 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."