Homeland Security Watch

News and analysis of critical issues in homeland security

July 3, 2010

Anchors away – or not – in the Gulf?

Filed under: Homeland Defense,Legal Issues,Organizational Issues — by Philip J. Palin on July 3, 2010

On the eve of Independence Day — on one of the most beautiful afternoons of the year so far — long-time contributor William R. Cumming has raised an intriguing issue regarding an instruction released by President Obama. 

The issue was a particular concern of the Founders and deserves our continued vigilence.  I happen to disagree with Bill’s interpretation, but I cannot claim the President’s language or intent is altogether clear.  So we begin with the President’s words and then continue to Bill’s and my own. 

The White House

 June 30, 2010

Memorandum from the President on the Long-Term Gulf Coast Restoration Support Plan

SUBJECT: Long-Term Gulf Coast Restoration Support Plan

The oil spill in the Gulf of Mexico is the worst environmental disaster America has ever faced. The oil spill represents just the latest blow to an area that has already suffered significant hardship. In addition to fighting the spill, conducting environmental cleanup, and ensuring such a crisis does not happen again, we must help the Gulf Coast and its people recover from this tragedy. A long-term plan to restore the unique beauty and bounty of this region is therefore necessary.

As I announced on June 15, 2010, and pursuant to the authority vested in me as President by the Constitution and the laws of the United States of America, I assign to the Secretary of the Navy (Secretary) the responsibility to lead the effort to create a plan of Federal support for the long-term economic and environmental restoration of the Gulf Coast region, in coordination with States, local communities, tribes, people whose livelihoods depend on the Gulf, businesses, conservationists, scientists, and other entities and persons as he deems necessary. In addition to working with these stakeholders, the Secretary shall coordinate, as appropriate, with the heads of executive departments and agencies, as well as offices within the Executive Office of the President (collectively, executive branch components).

Specifically, I direct the following:

Section 1. As soon as possible, the Secretary shall develop a Gulf Coast Restoration Support Plan (Plan), based on the following principles:

(a) The Plan shall provide a comprehensive assessment of post-spill needs, as well as a proposal for Federal assistance in the overall recovery of the region.

(b) The purpose of the Plan shall be to develop an approach that will ensure economic recovery, community planning, science-based restoration of the ecosystem and environment, public health and safety efforts, and support of individuals and businesses who suffered losses due to the spill.

(c) The Plan shall take into account resources already available to respond to the oil spill, and complement the on-going oil spill response efforts. The Secretary will also coordinate, as needed, with the State, Federal, and tribal trustees who have responsibility for directing the natural resource damage planning process under the Oil Pollution Act and other applicable law.

(d) The Plan shall identify long- and short-term objectives and, where applicable, how the achievement of these objectives will be measured.

Sec. 2. (a) This assignment is prescribed as an additional responsibility of the Secretary in accordance with section 5013 of title 10, United States Code. This additional responsibility may not be delegated under section 5013(f) of title 10, United States Code. (b) To assist in accomplishing the directive in section 1 of this memorandum, executive branch components shall make available information and other resources, including personnel, deemed by the Secretary to be necessary for development of the Plan.

Sec. 3. (a) Executive branch components shall carry out the provisions of this memorandum to the extent permitted by law, subject to the availability of appropriations, and consistent with their statutory and regulatory authorities and their enforcement mechanisms.

 (b) Nothing in this memorandum shall be construed to impair or otherwise affect: (i) authority granted by law to an executive department, agency, or the head thereof; or (ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. Nothing in this memorandum shall relieve or otherwise affect the obligations of any responsible party under the Oil Pollution Act or other applicable law.

Sec. 4. The Secretary is hereby authorized to publish this memorandum in the Federal Register.



Commenting on a prior post Mr. Cumming wrote:

Yes and the oldest and richest democracy (Republic) has now celebrated July 4th by putting the US Navy in charge of long term recovery in the Gulf of Mexico. The militarization of US domestic policy continues apace just as in foreign policy and relations. Salute that flag!

To which I replied:

Bill, Where did you see the US Navy assignment? I know about Secretary Mabus’ assignment. But I have perceived that as separate from his SecNav role — and much more connected to his background as a former Governor of Mississippi. If that’s wrong, want to know more.

Mr. Cumming responded:

Presidential proclamation published in Tuesday’s Federal Register. Sent it to you and will send again. John Paul Jones to the rescue!

To which I responded:

Bill, thanks for resending the reference. For the benefit of other readers a web version is available at:

As you know, I share your concern regarding militarization of government operations. As such, it is certainly appropriate to raise the concern in this case.

I would offer, however, that based on the (little) I know and my own reading of the President’s memorandum, I understand that Secretary Mabus is, essentially, being seconded from his current role as SecNav to a leadership position for both the National Security Staff and Domestic Policy Staff.

This is my reading of the intent of the following:

In addition to working with these stakeholders, the Secretary shall coordinate, as appropriate, with the heads of executive departments and agencies, as well as offices within the Executive Office of the President(collectively,executive branch components).

The reference to Executive Office of the President includes both NSS and DPS, especially a well-established recovery working group spanning the two EOP functions.

I agree the situation is ambiguous. I bet there will be some SecNav staff involved. And this is another example of an increasing tendency for us to turn to military resources (active or retired) for commmand and operational competence. It is a worrisome trend.

Mr. Cumming respectfully disagreed:

Having read thousands of these memos it looks like a formal delegation of authority to me. See 3 USC Section 301. By passes SECDEF and others. But hey Phil you could be right and only a designation.

As always I could be wrong but a designation names a person while a delegation names a postion. Basic black letter ADMINISTRATIVE LAW.

I guess this WH knows the difference and did what they wanted to do (accomplish)! Even though Roy Mabus is former governor in a Gulf Coast state I could name perhaps a 100 others better qualified to save the states of Florida, Alabama, Mississippi, Louisiana and TEXAS. In fact why not George W. Bush, tan, rested and ready? Give him a chance to redeem his Katrina castrophic efforts! This is not a joke. At least he is not eligible for re-election [but of course Jeb is also tan, rested and waiting his turn)! Hey this is a bipartisan or non-partisan response effort correct?

To which I offered a sort of rebuttal:

I will further note that Title 10 USC, section 5013 (f) as referenced in the President’s memorandum reads:

The Secretary of the Navy may assign such of his functions, powers, and duties as he considers appropriate to the Under Secretary of the Navy and to the Assistant Secretaries of the Navy. Officers of the Navy and the Marine Corps shall, as directed by the Secretary, report on any matter to the Secretary, the Under Secretary, or any Assistant Secretary.

The President’s memorandum explicitly excludes delegation under paragraph 5013 (f), which — at least in my reading — is the White House effort to give the former Governor, who happens to be SecNav, an additional duty, but to avoid militarizing the additional duty.

I wonder if there might not have been a less ambiguous way of accomplishing the same thing, but there seems to me a pretty clear and appropriate effort to focus this additional role outside the Department of the Navy.


Before retirement Bill Cumming was a long-time lawyer with the US government.  I am neither a lawyer nor an experienced government official. If you have further insights — or suggestions — please add your comments.

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Comment by William R. Cumming

July 4, 2010 @ 11:16 am

First apologies to former Governor Mabus. His first name is Ray not Roy.

Second if Phil is correct and he may well be given the non-redelegation provision mentioned then I guess SECNAV is not a full time job and he needs the additional duty. Question is if EO 12148 as amended is still in place and it is frequently cited by both DHS, FEMA, Congress and others, and even though I believe it is no longer an operative order even though never superseded or revoked but IMO superseded by operation of law, e.g. the Homeland Security Act of 2002) then why not the Adminstrator of FEMA and not the SECNAV to be overall coordinator? Perhaps this reflects the real status behind the spin as to Craig Fugates connections to this WH. As we know only the closest connections to the President help one to succeed in domestic civil crisis management situations.

Bottom line is the WH IMO has no idea of the implications of putting a serving SECNAV in charge of this effort which involves heavy science, engineering, community planning, protective action recommendation issuances and of course protective action decisions being issued. And as Phil points out the SECNAV has no help from Navy resources but must coordinate based on this proclamation which cites no legal authority beyond the Presdiential appointment. Note that the Gulf Coast restoration after Katrina failed until the RECOVERY COORDINATOR position made it into the statute books.

Who in the civil agencies thinks a former STATE governor and current SECNAV knows a thing about large scale domestic civil crisis management and response. Well we are about to find out. Oh that’s right the US NAVY is not yet a nuclear navy and still runs largely on fossil fuels. Good luck RAY! I wonder if you asked for this job and WH how exactly did you make this draft choice and what factors were involved?

The people of the US are tired of amateur night and random picks when the only successful domestic disaster crisis management civil system let’s all KNOW in advance who will show up, what is their training and experience, what funding do they have, what logistics systems, what legal authority, what personnel, what other systems and resources! So let’s get out a quick memo explaining all that for Ray so he has a chance of success. After all we have known for years that yes OIL Can Spill!

Comment by Philip J. Palin

July 4, 2010 @ 3:03 pm

I am not qualified to address the quality of lawyering in the President’s memorandum. But I will defend the selection of former Governor Mabus. As set out in the — potentially poorly crafted — delegation or designation, the task is to,

lead the effort to create a plan of Federal support for the long-term economic and environmental restoration of the Gulf Coast region, in coordination with States, local communities, tribes, people whose livelihoods depend on the Gulf, businesses, conservationists, scientists, and other entities and persons as he deems necessary.

What I understand is being undertaken is a participation-collaboration-deliberation strategy similar to what I have advocated for many months. I also understand that the “restoration” vision is distinct from what we generally call “recovery” and has nearly nothing to do with the ongoing response. I base this understanding on the language in the President’s memorandum, in related public remarks by the President, and in what I have seen emerging from this administration’s long-term Gulf recovery effort that was launched shortly after his inauguration.

According to those who claim to know him, Governor Mabus has the listening, networking, and leadership skills to take on the resilience-crafting he has been assigned.

Bill, I will not argue with your critique regarding what we are to make of a SecNav — no matter how qualified — being appointed to this unrelated task. The Navy is going through a major transition for which it needs and deserves the best possible civilian leadership.

But in this case I will admit to some homeland security parochialism. I perceive the White House sees in Mabus a man able to take up the ragged loose ends of the Gulf’s problems and weave resilience. I don’t know if they are right or wrong. But I want to honor the effort and help as I can.

Comment by William R. Cumming

July 5, 2010 @ 5:12 am

A few good men? How about a woman?

Comment by Barham

July 6, 2010 @ 1:48 am


The Presidential Memorandum appointing the Secretary of the Navy, Mr. Mabus, to lead recovery of the Gulf states following the Deepwater Horizon disaster, and, to a significant degree, also to complement the ongoing effort ( “The Plan shall take into account resources already available to respond to the oil spill, and complement the on-going oil spill response efforts.” ) has really nothing to do with the claimed “militarization of the federal government” or, more specifically, its disaster management activities. In reality, it is a rather poorly constructed, and slightly chaotic directive that appoints, for a rather unfathomable reason, the secretary of a military service to a task for which neither that service, nor the resources it commands, are particularly suitable.

Frankly, once the decision was made to delegate the responsibility for recovery planning to a military service, the appointment of the Secretary of the Army, the branch of US military with the largest experience in post disaster operations, related logistics, and an indisputably well developed and practiced capability for long range planning of relevant activities, community building, etc., all supported by the ideally suited materiel resources, would be far more appropriate. However, considering the current involvement of the Army in other major operations, the President might have chosen not to burden the Secretary of the Army with another complex task detracting from activities conducted elsewhere. Thus, the NAVSEC “received the nod” – after all, even with lesser experience, USN and the Marine Corps (under the civilian control of the NAVSEC) proved to be impressively capable on several occasions when involved in often very complex recovery operations.

Despite rather offhanded rejection of naval capabilities in structuring the post-spill recovery process by one of the correspondents (WC), it has to be pointed out that the Navy has an excellent and demonstrated record of intellectual and practical capabilities in “heavy science, engineering, community planning, protective action recommendation issuances and of course protective action decisions being issued.” With the tenets of jointness permeating interactions among individual services of the US, the Navy will be able to draw extensively on the expertise within sister services as well. The fears of Mr. Cumming that USN shall not be able to meet the challenge appear groundless, and voicing them in the manner they are presented represents a highly subjective, maybe even self-serving, approach by someone who rejects participation of the military in disaster operations as a matter of principle.

In truth, the fear for “militarization” of disaster response and recovery is not only unrealistic but downright ludicrous. What “anti-militarization” proponents fail to observe is the fact that, like all other institutions, the Department of defense and the military services it represents is nothing else but the branch of the federal government of the United States, at the service of that government, and the services subject to the orders of the Commander in Chief, i.e., the President. It is rather obvious that, in time of not necessarily military crisis, it would be quite foolish of the President not to avail himself of the tremendous intellectual, technical, and operational capacity the Armed Forces offer in service of the nation both at home and overseas. Here, It must be also noted that the significant component of the US Army (and the Air Force) consists of National Guard units – the “citizen-soldiers” who, throughout the history of the United States, provided one of the most unique elements of any military establishment in the world. These are the men and women for whom the fate of their homeland is the dearest, and who serve that homeland whenever such service is needed by shoring levies, delivering healthcare, erecting shelters, or helping to evacuate disaster victims. Many of the Guardsmen are our neighbors, many are our personal friends. Insinuating that theirs are sinister intentions is disingenuous. Insisting that their capabilities be used to the fullest in the service of populations devastated by the oil spill is, in fact, the duty the rest of the nation must exercise on behalf of the people of the Gulf.

Historically, civilian agencies involved in disaster response and recovery have not performed with a roaring success. Despite insinuation that the appointment of the Recovery Coordinator substantially changed the plight of victims of Katrina, the suffering persists, visible for anyone who bothers to go and look beyond the jollies of New Orleans Bourbon Street. What is, however, beyond dispute, is the fact that arrival of LtGEN. Honore at the head of a US Army column ended chaos, introduced order, and restored the thinking capability of the civilian authority which, until that moment, appeared to be controlled by the mix of disorganization and numbing panic. Unfortunately, the approach to the management of the oil spill bears substantial resemblance to the management of the post-Katrina world: chaos, lack of clear command and control structure that allows activity of several agencies but facilitates no coordination of effort, and virtually absent collaboration among governmental bodies at practically every level. All that contrasted by a sterling effort of the local population acting on their own initiative, using common sense, and all available resources, and trying to counteract the glaring ineptitude of the civilian authorities.

In view of all that, I would prefer to have the military take over control of what rapidly becomes another sordid example of the dysfunctional nature of civilian agencies whenever a less-than-fully-anticipated event takes place. Instead, I would have these agencies understudy and learn from the military how to conduct operations in the adverse environment saturated with unknowns, unpredictables, and under unrelenting pressure whose burden can be relieved only by cooperation and collaboration among all actors, rather than by insistence on “process”, “plan”, and “procedure.”

Neither Mr. Palin nor Mr. Cuming see the possibility of relenting “interservice” rivalries of civilian agencies by subjecting them to plans created by a military one. A plan that will be surely based, in the best tradition of the modern US military, on the spirit of jointness and shared purpose, rather than, as often seen in the civilian world, on the maintenance of individual prestige and the ability to place own failures on the shoulders of others. It is, indeed, a sad state of affairs when two prominent members of the disaster management establishment reject implementation of a tool readily placed at their disposal – the US military – for fear of having the turf reduced, and to have “evidence-based” proof that in truly critical situation the military may actually do things better. It is simply trained to perform in the world of battlefield ambiguity while senior civilian managers are trained to perform best in the predictable, solid world of bureaucratic rules contemplated as far from the site of hot action as it is only possible.

In the end, therefore, maybe not the best decision by the President, but surely the definitive step in the right direction, and one that should have been made much earlier.

Comment by William R. Cumming

July 6, 2010 @ 2:09 am

Hey We just learned that the Navy has deployed its first blimp to the GOM for the BP catastrophe! And we now learn thatg BP is largest supplier of fuel to DOD! Yes ! Go Ray Go!

Let US see how a multidisciplinary approach to warfighting translates through command and control paradigms in the GOM!

After all wasn’t COIN first referred to in RVN as the
“spreading oilspot theory” of counterinsurgency? See US can learn from the past!

Comment by Philip J. Palin

July 6, 2010 @ 6:41 am

Barham has made an important contribution to the discussion. I would like to see the discussion unfold a bit more.

First, just to be doubly clear, I do NOT perceive the SecNav’s appointment to lead the Gulf restoration planning process to be an example of militarization. I understand Mr. Mabus has been appointed for reasons unrelated to his SecNav role and this assignment will not include Department of Navy staff or resources.

Second, while I would argue my concerns related to militarization are evidence-based, I will admit the evidence is somewhat (even extremely) dated and drawn mostly from outside the United States. Further I will readily admit that both the DOD and National Guard have great resources and have demonstrated considerable competence responding to emergencies and disasters.

I broadly agree (with lots of footnotes) with Barham’s assessment that, “It (the military) is simply trained to perform in the world of battlefield ambiguity while senior civilian managers are trained to perform best in the predictable, solid world of bureaucratic rules contemplated as far from the site of hot action as it is only possible.”

It is the paucity of education, training, and professional development of civilian homeland security personnel that is at the heart of my concern.

Over the last sixty years – and especially the last 35 years – the US defense community has become an expert producer and distributor of intellectual capital. In my judgment we increasingly defer to and depend on the military because we have so successfully invested in their competence and capacity.

But Barham, are you entirely unconcerned at the growing delta between civilian and military capacity? At some point doesn’t the delta become more than an operational issue and become a matter of constitutional concern? Is there any limitation you would place on what is an appropriate military role in prevention, mitigation, response, and recovery for domestic emergencies and disasters?

Comment by Ed Beakley

July 6, 2010 @ 12:20 pm

On Claire Rubin’s Recover Diva site, Mr. Cumming writes in response to Barham’s original comment on this subject:
“Well an interesting comment. The desire for control of chaos is strong in the human psyche. Unfortunately events are often not subject to human command and control. The view that cooperation and collaboration and inputs from multidisciplinary sources might even help those who are military leaders. Mary Parker Follette in the 20?s indicated that the modern business model should not be authoritarian management but rather team building for specific purposes and cooperation and collaboration. Why? The complexity of the modern world.”

First, full disclosure: I have followed this dialogue over the weekend because of being informed by Barham.
My thoughts follow:
1) Mr Cumming replies only “well an interesting comment.” Seriously that’s it? But wait for it -“events not subject to command control”
Sir, if you wish to be taken seriously in your concern for militarization of supposedly civilian owned process it would seem important to recognize that “command control” is indeed exercise of power to include application of resources. I believe that’s what incident command and NIMS is all about. Control of chaos may be a high human “desire”???, but most importantly, it is required if communities are to survive on their own terms.

2) As to complexity requiring collaboration – absolutely! We face in Erwan Lagadec’s terms “unconventional crisis” requiring unconventional leadership. The “team of leaders” construct was developed – believe it or not, Mr. Cumming by two Army Generals and is being implemented in EUCOM across multipleorganizational boundaries.

3)Your points in this post concerning selection of a serving SECNAV to lead a planning effort and what the legal words imply would draw more serious consideration, if your comments were not so tinged with sarcasm, and contempt for the military and the Navy in particular. To the point you write:
“Who in the civil agencies thinks a former STATE governor and current SECNAV knows a thing about large scale domestic civil crisis management and response. Well we are about to find out. Oh that’s right the US NAVY is not yet a nuclear navy and still runs largely on fossil fuels. Good luck RAY!”

Well sir, who in this COUNTRY thinks the civilian side that you tout so highly for their planning and knowledge believes 70 plus days into Deepwater has even a clue about how to fix things?

As a Navy guy, any event occuring in open ocean, at depth of 5000ft is day one minute one a most severe crisis. The issue required day one response, not letting BP play out to see how well they did, or even giving decision making about “who pays” a primary consideration. This may not be a battlefield, but lack of thinking of it as one was pure and unnecessary folly. While you worry about Seven Days in May, a whole region is under unrelenting attack with no near term solution at hand.

Who indeed might think and act appropriately?

Comment by Ed Beakley

July 6, 2010 @ 3:21 pm

Mr. Palin,
Knowing that Barham will answer your concerns in detail, I offer a couple of thoughts for your consideration in light of your concerns on becoming “militarized:”

1) The USA is one of only a few countries that separate security from defense. We require use of the Stafford Act to do what many countries do seamlessly.
2)If you followed the Rolling Stone/General McChrystal thing, you surely noted that there were no opinions by senior retired military arguing against civilian control or not supporting the General’s removal. In 234 years, for the life of me, I cannot find basis nor understand this fear of Seven Days in May expressed on occassion.
3) The issue that our Washington “Ellite” seem incapable of grasping is that – due to technology (how we can communicate and where we can build)and changes in a globalized world -what we like to note as Low Probability, High Impact events have become “Absolute-Certainty, Low-Predictability, High-Impact” incidents that take place all the time.

Some refer to General Honore as the “CAT 5 General” but nothing indicates senior decision makers have incorporated the lesson. Consider this:

Researchers note that there are “disasters that go beyond typical disasters.” The latter have come to be noted as “catastrophes.” Most notably would be 9/11, the 2004 Tsunami, Hurricane Katrina in 2005, and in 2010, the earthquakes in Haiti and the Deepwater Horizon Oil Spill.

By virtue of unusual scale, a previously unknown cause, or an atypical combination of sources, responders face challenges that are indeed novel, the facts and implications of which cannot be completely assimilated in the moment of crisis.

These events are not only characterized by high stakes—the likelihood of major losses (to life, limb, property, heritage, or other highly valued social or private assets) – but they have shared striking similarities, inasmuch as they foster destabilization of leaders in charge of response and reconstruction efforts, and the whole of communities.

Catastrophes generally exhibit a high level of uncertainty about just what the outcomes will be and a high degree of contingency – significant variability in the possible outcomes that may result under different choices of action. Much is at stake, and the results will depend on what we do—but we do not know for certain which course of action will be best.

These events are thus distinguished from more familiar or routine emergencies and conventional disasters by the presence of significantly new circumstances and different kinds of intellectual challenges, thus the use of the terminology unconventional crises.
The main characteristic of unconventional events is that they are exceedingly difficult to map. This can be due to (a) the technical complexity of response efforts; (b) an unusually complex geography of affected areas; (c) the potential for a crisis suddenly to affect systems and interests that initially seemed remote ; (d) a bewildering kaleidoscope of stakeholders; or (e) confusing, overwhelming, or, conversely, insufficient information. With high degree of difficulty in “mapping” the operational environment, we now require decision making under circumstance with hyper complex characteristics.

Planning for the unconventional crisis should include civilian agencies, military, private sector, and communities. While we have this in some sense, it has not been formulated, stated or therefore understood at all levels as a function of a specific type of crisis. Therefore we get dithering when we need decision making and adaptability.

When these type events occur, we cannot afford military paranoia.

Comment by William R. Cumming

July 6, 2010 @ 3:58 pm

Just a brief riposte to BARHAM comment! IN 34 years of Federal Service including two years, eleven months, four days,and seven hours [but who was counting?] I never saw any DOD entity follow a specific plan. Phil Palin should be happy since I defended planning and he defended its difficulties in earlier posts. The reasons are extremely complex and just to state one–the military on any given day like a river is never the same river. Turnover often adversely impacted following the plans. During my time I did my best to turn plans into option documents not mini recreations of the German General Staff mobilization scenario plans where once triggered became in and of themselves a Causus Belli.

Comment by Philip J. Palin

July 6, 2010 @ 5:06 pm

I notice readership for this discussion is unusually high. Some readers may want to know that a related exchange is ongoing at Claire Rubin’s RecoveryDiva blog. Please see http://recoverydiva.com/2010/07/05/oil-spill-disaster-july-3-new-restoration-support-plan/#comments

One of the benefits of asynchronous communication is the opportunity to pause, reflect, and think before responding. For the moment, I will take advantage of that benefit.

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