Homeland Security Watch

Comment by William R. Cumming

March 26, 2009 @ 10:06 am

After doing some checking found no publically available document ordering the cyber review on February 9th. Hope the President, unlike the DHS Secretary, thinks the Executive Branch responds to Press Releases.

Why is this important? Two actual cases. On May 9th, 2001, President Bush assigned Vice President Richard Cheney the role of “Counter and Anti-Terrorism Czar” (my term) for the entire Executive Branch. A similar role had been given to VP George H.W. Bush by President Reagan. In fact other than hiring an Admiral as staff support nothing happened before 9/11/01! I always wondered if the VP (Cheney) prevented a more formal assignment to him other than a press release. That Press Conference also gave FEMA a lead role in Domestic Terrorism Response and Recovery and as of 9/10/01 a draft Executive Order and implementing documents had been prepared by John McGaw of FEMA’s National Security Office (a newly created vehicle as of May 9,2001 and mentioned in the White House Press release.

A second example, President James Earl Carter after the TMI event of the Spring of 1979 (FEMA opened its doors on April 1st, 1979 as an agency under Reorganization Plan No. 3 of 1978) and no that April fools date was no joke) ordered a review of NRC off-site safety responsibility. Mitch Rogovin (formerly CIA General Counsel and formerly IRS Chief Counsel) was assigned to do the Administrations report on the event. (It was a core-melt accident but afficiandos of nuclear power call it the TMI Event and no federal disaster declaration was ever issued). This was done by press release. At the same time Congress mandated another investigation led by the President of Dartmouth (Not the Ayatollah) Kemeny. With those reports in hand Carter held a press conference in early December assigning FEMA the off-site safety rule for domestic nuclear power stations. Unfortunately, no implementing Executive Order was ever issued resulting in a highly convoluted legal authority issued resolved only after some of the lengthiest adminsitrative law hearings and lititigation in US history (specificall Shoreham and Seabrook). Hundreds of millions of dollars and administrative burden could have been accomplished by a proper Presidential tasking order in whatever form.

President Obama is a lawyer. Secretary DHS is a lawyer. How about doing it nice and proper legally and NO GOVERNMENT BY PRESS RELEASE! Seems basic administrative law to me. An order is an order. An order is not a Press Release.