Homeland Security Watch

Comment by William R. Cumming

November 19, 2008 @ 9:48 am

It is always interesting when knowledgeable persons, very competent in their fields are unable to synthezie past lessons learned largely because while they are competent in their own fields they lack the comprehensive understanding necessary to make changes that really will matter in the long run. Please excuse the length of this comment but could not resist. On the basis of the above statement and direct experience now dated 9 years out from retiring from FEMA OGC on October 1st, 1999, I hope these comments are understandable at a minimum and contribute to some degree. Not all of the DHS transition handbook is addressed just two portions. The integration of HSC and NSC and FEMA placement. Both are integrally related as I hope to establish.

First the HSC and NSC integration. FEMA alwayls during its days as an independent agency had programs, functions, and activities that reflected national security concerns. It is also true that by 1974, the Federal Civil Defense Act of 1950, Public Law 81-920 had no longer any policy making function and certainly not in the Nuclear Strategy Policy of the US. Nixon in breaking up OEP and distributing its functions out of the Executive Offices of the White House in Reorganization Plan No. 1 of 1973 eliminated the position of Director, DCPA from the National Security Counsel statutory membership never to be re-established. Interestingly, other national security functions, including the COOP and COG programs were transmitted to GSA’s Office of Federal Preparedness. And of course Disaster relief to HUD.

When FEMA was created by Carter’s Reorganization Plan No. 3 of 1978, programs, functions, and activities once in OEP were again recombined reversing the Nixon 1973 reorganization. FEMA interestingly had been created in part as a result of a NGA study divided into 5 major parts, one of which was the impact of terrorism on the states. Note that report appeared long before 9/11 and the start-up of FEMA.
When Clinton arrived in the White House he specifically instructed his FEMA Director James Lee Witt to focus on natural disasters. Interestingly, however, the first WTC attack (obviously a no-notice event) was early in the Clinton first term This was declared a Presidential disaster and FEMA helped out. Of course the next major disaster creating a policy opportunity was the mid-west flooding of spring and early summer 1993 (an event for which there was almost 12 weeks notice) and seized upon by Clinton to protray his Presidential talents.
Interestingly, it was another no notice event in the explosion of the Murrah Building in Oklahoma City (a federal building to be specific) wherein the subject of terrorism (that might have been highlighted by the 1993 WTC attack but was not because Grand Jury testimony was sequestered by DOJ from both the NSC and CIA largely because of FRCP 6(e) that actually created the wall of separation later so notorious as being created by the so-called Gorelick Memo that the 9/11 commission identified as a problem). Again of course FEMA responded because of the off-site impacts on STATE and LOCAL government.
Clinton then issued PD-39 issued in draft and reviewed by all departments and agencies and adopting the now somewhat obsolete distinction between “Crisis Management” and “Consequence Management.” FEMA given the lead for the latter by Clinton.
Why is this background so important. FEMA’s Director James Lee Witt largely rejected the role assigned in writing by the President on the basis that his agency had not been staffed or funded to do the job assigned. Thus, the NSC staff largely fell into the posture of coordination of STATE and LOCAL national security activities.
In a way all of this background highlights but misses the issue. Here is why?
The National Security Council has as its charter integration of military, international, and surprisingly domestic policy to protect the national security of the US. President George W. Bush and his staff ignorant of this charter language imbedded in statute (only recently did the NSC staff get a permanent GC positon) and his National Security elite advisors not really being interested in domestic policy allowed and recommended creation of the HSC (presumably so they would not be bothered from their more important mission of integration of military and international affairs. Note that Bill Clinton did recognize the importance of economics in national security but instead of buttressing the NSC and its staff created the NEC.

My bottom line is that the NSC and HSC should be combined but probably for a far different reason than stated in the Handbook or ALL of the articles published on this subject to my knowledge to date. Here is why? THE NSC is not the right vehicle to run domestic crisis management where an incident threatens or actual even causes severe physical damage to the infrastructure of the US, its STATES (igoring for the time being local government)and its impact on the national security or other domestic concerns. The NSC, its staff, and the national security establishment including DOD and large parts of DHS and even DOJ are not used to having to concern themselves with the private sector except to procure goods and services, or STATE and LOCAL governments, or NGO’s. Largely because they are implenting federal statutory schemes that are federally interpreted, controlled and funded they are to some degree insensitive to issues of federalism and economics. Thus, the WHITE HOUSE should not wait to create a DOMESTIC CRISIS MANAGEMENT OPERATION with persons skilled in the operation of the federal system and even the private sectors utilization for support of the recovery effort and operational skills. This is a totally new concept! Although it was foreshadowed by Senator Barbara Mikulski (D) of MD in her S.995 bill in 1993, blocked by Witt and Clinton because of their largely personal relationship and desire to manage without Senate guidance. Then in the summer of 2001, Till Fowler (R) of FLA, now deceased, personally achieved the passage of H.R. 4100 by the House of Representatives again bolstering domestic crisis management in the WHITE HOUSE. The Senate never took up this bill largely because of 9/11. H.R. 4100 relected the best thinking and implicit arguments of the many reports, including what I call Hart-Rudman and Gilmore I, II, and III.
It is this WHITE MANAGEMENT OF DOMESTIC CRISIS INCIDENTS/EVENTS that needs immediate addressing. Leaving that function to say the Secretary of the DOMESTIC POLICY COUNCIL is not going to cut it. Amatuer night should now end, either with NSC staff tring to deal with federalism or economics as opposed to the subjects of their education, training and experience.

Okay, how does this impact the immediacy of the FEMA decision. Very simply. FEMA has traditionally adminstered the Robert T. Stafford Disaster Relief and Emergency Assistance Act, Public Law 100-707, implementing new law, rescinding some old law, and modifying old law in the form of the Disaster Relief Act of 1974 (Public Law 93-288). The authority in these statutes (codified at 42 USC 5121 and following)is vested in the President. I argue that the delegation to the Secretary DHS should be withdraw and given to a WHITE HOUSE OFFICIAL who is in charge of DOMESTIC CRISIS MANAGEMT. The current FEMA staff can be housed anywhere but would in fact be the crisis managment support staff for roles assigned it. No need to lose that experience and expertise. One of the problems with this proposal is that the Robert T. Stafford Act needs to be at least somewhat revised to fit the crisis management role and to deal with catastrophic situations. And note one of th BUSH 43 major accomplishments was the tasking of FEMA and other orgs to deal with catastrophic situations (although the 15 scenarios are far to limited–but the TCL and NPG help). FEMA under the Carter Reorg was flatly prohibited from planning for catastrophic situations, a limitation ruthlessly enforced by the ignorant at OMB and in part what was in place and wrong during Katrina. That limitation no longer exists thankfully.

Another issue is that unlike the DHS Secretary or the FEMA Administrator White House officials don’t testify normally before Congress, so Congress may be concerned at the unilateral fix of a WHITE LEVEL OFFICIAL that will have a key interface with the private sector and under our federal system STATE and LOCAL government. Then there is the fact that the Stafford Act is under the oversight of the Public Works Committees. The last thing they have as a concern is CRISIS MANAGEMENT. So this probably would have to be review.
As many of the readers of this blog know from prior comments I really try not to engage in personalities in my comments. No individual or organization could probably ever meet my standards as monday morning quarterback. Yet, OBAMA needs that DOMESTIC CRISIS MANAGER on board as soon as possible. The types of personalities should probably be a James Lee Witt or Frank Keating type (they are both friends) and hopefully some combination thereof. Both are brave, competent, and knowledgable about what is necessary to be done. There clearly are others, although not many which is a matter of worry to me. Thus, the FEMA issue should not be postponed because to do so means that NO real DOMESTIC CRISIS MANAGEMENT exists in the WHITE HOUSE. Attn: Mr. Emmanuel and Mr. Podesta. And as a final throwout, the VP could be involved. But whomever it is they must be willing to speak truth to power and not want to hide behind their desk during a crisis (Witt and Keating would not hide) and of course over time they must build what has never been truly built before a crisis management system that comports with the federal system established by the Constitution. Good luck, Mr. President Elect! I hope you don’t have a large scale domestic crisis ever but of course we know that kind of crisis might just happen, say the worst, a NUDET in a major US city.

Comment by Arnold

November 20, 2008 @ 12:38 am

“so we may be reading a report being implemented in real time.”

Probably…not so much. The lower level stuff perhaps, but considering the pressing concerns of the economic crisis and two “wars,” I doubt the paper’s ambitious time line will be followed.

Not that they didn’t have good ideas. I’m still waiting for the economic analysis of all this funding of state/local activities, plus how the whole public/private partnership in homeland security can work in practice and not on paper.

And don’t get me started on every DC think tank calling for private citizen preparedness without a real plan of action to promote it.

Comment by William R. Cumming

November 20, 2008 @ 1:10 am

Probably should have mentioned that domestic crisis management oversight is arguably with the House Homeland Security Committee and Senate Homeland Security and Governmental Affairs. If actually with the Armed Services Committees their defective oversight of military/civil issues is a threat to the Constitution. Witness their recent passage and then repeal of Presidential authority in natural disasters under the statutes implementing the so-call Insurrection Act at 10 USC 331-334.