Homeland Security Watch

News and analysis of critical issues in homeland security

January 23, 2015

Friday Free Forum

Filed under: General Homeland Security — by Philip J. Palin on January 23, 2015

William R. Cumming Forum

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13 Comments »

Comment by William R. Cumming

January 23, 2015 @ 9:08 am

A FUNDAMENTAL FLAW IN GOVERNMENT LAWYERING:

Perhaps of some interest to ALL is the old saw that a client has to ask his/her lawyer the right question to get the “right” answer. This aphorism from the world of private practice of the law [a State regulated activity largely unregulated by the federal government] should not really be applicable to the General Counsel and Chief Counsel staffs of the Departments and agencies of the federal government [like the CFO and CIO statutes there has long been needed a GC statute]. OLC/DoJ should do the same IMO!

In my 20 years of lawyering in FEMA 1979-1999 only one GC followed a suggestion of mine as to answering clients questions–Patricia M. Gormley–now deceased.

Here was my suggestion for what it is worth.

Client’s often asked the question CAN I [WE] DO THIS and then identified a particular statutory scheme to be researched for the answer.

But FEMA GC’s lawyers when asked often adopted the position that when something specifically addressed or not addressed in a statute only that statute was addr3essed in their answer even when authority addressed under another statute vesting authority in the then Director of FEMA or delegating to him. And despite some of the broadest discretion delegated by the Congress GC FEMA answered NO even when specific authority to take action existed in another statute or Presidential delegation.

REMEMBER I always lawyered to make government work not to stop it in its tracks.

Sadly government lawyers seldom say YES and prefer to say NO!

Comment by William R. Cumming

January 23, 2015 @ 9:21 am

FEMA’s Emergency Food & Shelter Program administered pursuant to Title III of the Stuart B. McKinney Act.

This FEMA program is NOT under oversight by the PUBLIC WORKS COMMITTEES like the Stafford Act but the BANKING AND HOUSING COMMITTEES OF THE CONGRESS.

Largely administered by national charitable organizations, this program is administered by a small FEMA staff. I always asked for this authority to be reviewed to determine its flexibility to feed and house those impacted by catastrophes in the USA. THIS WAS NEVER DONE! Yet IMO this statute with minor revisions could be used in DOMESTIC CRISIS MANAGEMENT INCIDENTS AND SITUATIONS when necessary.

FEMA spent most of its official policy efforts trying to remove itself from administering this program and send it to HUD but Congress enthralled with low administrative costs disagreed even when various Executive Branch Administrations requested the change.

WE can now document how spurious was the notion that in a crisis situation the Congress can rapidly act to provide authority AND funds to the Executive Branch.

First this notion presumes there is a Congress and second that emergency legislation can be timely provided.

The Executive Branch used to have a standby CFR [code of federal regulations] but these were eliminated under President Reagan. Perhaps a stretch but suggest these might be needed in some crisis events.

IMO even the Executive Branch cannot act in timely fashion in many domestic crises and in particular in the Fourth Quarter of many FY [fiscal years]!

Comment by William R. Cumming

January 23, 2015 @ 9:29 am

FEMA briefed a piece of standby legislation to key Congressional Committees in the early 80’s!

Titled the DEFENSE RESOURCES ACT the standby legislation was simply the lapsed titles of the Civil Defense Act [Public Law 920 of the 81st Congress] as amended and the DEFENSE PRODUCTION ACT OF 1950, as amended. The CDA no longer exists [see Public Law 103-337] and the DPA was recently extended for 5 years by the 113th Congress. The CDA was under the oversight of the Armed Services Committees and the DPA is under the oversight of the Congressional Banking Committees.

Comment by Joe Citizen

January 23, 2015 @ 11:54 pm

Homeland Security – after the “Benghazi Massacre” and with all the snubbing to allies and friends by this perverse White House, never has America been so susceptible since World War II – what a sham(e) – God Bless America!

Yemen Falls Into Iran’s Orbit as Region Caught Asleep at the Wheel
Jerusalem Post | January 21

Iranian-backed Shiite Houthi rebels are on the verge of a
coup in Yemen as Sunni rivals within the country and regionally
seem helpless to stop them.

Sunni countries in the region are distracted by more pressing
instability at home and of the threat from Islamic State and other
radical groups. The West, focused on the Islamic State and its
coordinated action in Syria and Iraq, sees Yemen as a side show.
“gcc [the Gulf Cooperation Council] must intervene now to
save Yemen,” the uae-based Gulf News headlined its editorial on
Tuesday, in a sign of the shock of Yemen’s Sunni Gulf neighbors.

“Al Houthis already control 14 provinces out of 21,” the paper
noted, adding that “the gcc cannot watch idly while the Iran-allied
al Houthis terrorize a neighboring country and flex their
muscles in a region already riddled with conflicts.”
If the Houthis are able to solidify control over the Arabian Peninsula’s
southernmost country, which abuts the Red Sea, whence
ships travel to and from Eilat, Aqaba and the Suez Canal, they
could endanger Israel’s and other countries’ sea traffic.

On display across Sanaa, the group’s slogan “Death to America,
Death to Israel” is modeled on revolutionary Iran’s motto, and
many Yemenis draw parallels between the Houthis and another
of Iran’s Shiite protégés—Lebanon’s Hezbollah. …

“By fiddling while Yemen burns, the Saudis have given Iran a
huge new advantage along its southern border,” [David Andrew
Weinberg, a specialist on Gulf affairs and a senior fellow at the
Foundation for Defense of Democracies,] said. …

“The Houthi takeover of Yemen means absolutely everything
to Iran. They are watching events unfold there like an investor
watching his investments return hefty dividends,” said [research
analyst Oren] Adaki.

“Iranian officials could hardly contain themselves during the
first days following the Houthi seizure of Sanaa in late September.
They openly boasted that Sanaa had fallen into their sphere of
influence and eagerly announced that they support the Houthis.”

“‘While it is far too soon to write the final chapter
on the uprisings’ impact,’ the New York Times
wrote, ‘Iran has already benefited from the ouster
or undermining of Arab leaders who were its
strong adversaries and has begun to project its
growing influence.’

Actually … students of Bible prophecy know exactly where this is leading.”

Stephen Flurry, “Iran Wins Big in the Middle East,” Feb. 25, 2011

Comment by William R. Cumming

January 24, 2015 @ 11:32 am

A royal change in Saudi Arabia may impact the USA!

My take for the benefit of the HLSWatch.com bloggers and commenters and readers.

Disclosure: My sons long long ago had a Saudi soccer coach and in my last house entertained a Prince from the Saudi royal family for 3 days. Brought there by a friend as their friend.

AND I WOULD INVITE QUESTIONS TO BE ANSWERED BY ME ON THE FFF ANYTIME ON THOSE POST DATES.

Many in the USA view the relationship between the US and SA as being based on oil. That conclusion IMO is not accurate if you consider oil and gas fungible commodities.

So what is the basis? Not oil and gas but petro-dollars. SA long ago agreed to support the dollar if the US would defend SA. Essentially this rested on two pillars. First, the Saudis would largely recycle their petrodollars with guidance of the US including its Federal Reserve. Second all world wide oil and gas transactions would be conducted in dollars [currency]!

This agreement has been eroding for sometime including the growth of barter agreements for oil and gas supplies. These are largely off the books and not available for public inspection even by interested parties.

IT REMAINS FOR TIME TO TELL WHETHER THE U.S. AND S.A.
relationship will change with the arrival of a new king.

What we do know is that 9/11/01 19 of the terrorists were Saudi. And the Bush Administration flew a plane load of Saudis out of Washington [perhaps plane loads?] in the hours and perhaps days after 9/11.

We also know that 29 redacted pages of the 9/11 Commission report remain classified but IMO dealt with S.A.

We also remain interested in the financing legal and illegal of the BUSH family in politics by S.A. and exactly what that relationship exists of in fact.

As far as I know there is NO formal treaty between the US and SA.

Remember President Wilson’s NO SECRET TREATIES OR ARRANGEMENTS?

Comments?

Comment by William R. Cumming

January 24, 2015 @ 11:43 am

REM4EMBER PLEASE THAT MY COMMENTS AND INVOLVEMENT WITH HLSWatch.com blog are not as a lawyer! I held a membership in the Virginia Bar from 1970-2010 but no longer. I have never accepted for pay any client during that time except as a federal lawyer representing departments and agencies administratively and in the federal courts.

My only government contract pay since retirement was for two days as a third-tier subcontractor to TASC [formerly the Analytic Science Company once headed by Jacque Gansler]!

The subject of those two days was risk assessment of RDDs [radiological dispersal devices] and based on open sources. The report was unclassified and done for the S&T Directorate of DHS. The draft report was never released in final to the public and was later classified by DHS at the request of DoE. It was quite a distinguished panel including David Albright.

Comment by William R. Cumming

January 24, 2015 @ 12:09 pm

My previous comment was in part directed at the fact that I continue to receive calls and e-mails periodically from the Congress, its staff, and the WH and various components and organizations of the federal Executive Branch and State and Local governments and NGOs.

My answers are based on my education, training and experience. They are not classified and although I held many security clearances for many years did not carry a clearance into my retirement over 15 years ago.

Only once in my over 15 years since retiring from FEMA have I been contacted by FEMA for factual or legal history or information.

A lawyer in FEMA OCC called me [Diane Donnelly long retired] asked me to come in and discuss a sensitive issue. I did so and another lawyer was present. The sensitive issue–did the joint regulations of FEMA and NRC [44 CFR Part 350 et seq. and 10 CFR Part 50] address the fast breaking potential or actual core melt accident?

My answer was no and those regs even today don’t reflect that scenario.

I did file a lengthy comment with NRC and FEMA several years ago tangentially addressing this question in their joint rulemaking to update those regulations with comments formally requested on their dockets. That comment is publically available and the rulemaking is the first up-date of those regulations if accomplished since those regs issued in the nearly 80’s.

Comment by William R. Cumming

January 24, 2015 @ 12:30 pm

BTW both Chenoybl and Fuskishima Da-Ici were fast-breaking core melt accidents. So was the accident at TMI although no one knew it until much later when robotic inspection of the core was accomplished.

These are not the only nuclear incidents/events and the publication of a book in 2009 [pre-Fukishima Da-Ichi (2011)] written by Stephanie Cook entitled IN MORTAL HANDS- A Cautionary History of the Nuclear Age so documents. You can read my quick and dirty book review on Amazon books.

Comment by William R. Cumming

January 24, 2015 @ 12:54 pm

OKAY HERE GOES:

A recent question came to me from a CRS staffer. The question: DID I HAVE A CURRENT VERSION OF EXECUTIVE ORDER 12148 INCLUDING ALL CURRENT AMENDMENTS?

MY ANSWER: I did not have such a document but gave the following advice. IMO E.O. 12148 was superseded or largely superseded by operation of law–specifically the enactment of the Homeland Security Act of 2002 and at best the delegation of the Robert T. Stafford Act to DHS/FEMA might have some validity.
Whenever that statute or others have intervening statutory amendments E.O. delegating authority must be revised and updated. THIS HAS NOT BEEN DONE IN DHS.

Recently the authority of the President to act by Executive Order has been questioned by some. By law the best analysis of Executive Orders remains the SCOTUS decision in Youngstown Sheet & Tube v. Sawyer in about 1952 when all nine justices of SCOTUS opined on President Truman’s seizure of steel mills during the Korean War. SCOTUS ruled against Truman’s seizure.

EXECUTIVE ORDERS CAN BOTH BE USED TO DELEGATE PRESIDENTIAL AUTHORITY AND GIVE POLICY GUIDANCE TO DEPARTMENTS AND AGENCIES.

The last real compilation of extant EXE3CUTIVE ORDERS was accomplished by the Reagan Administration in 1989 and published by NARA!

IMO each newly arriving President should have a NARA [national archives and records administration] and OLC/DoJ approved version of all extant EXECUTIVE ORDERS with all amendments put on their desk when they arrive after inauguration.

I am reliably informed that over 300 draft EXECUTIVE ORDERS OR AMENDMENTS NOW ARE IN THE POSSESSION OF THE OBAMA WH MANY DEALING WITH ENVIRONMENTAL ISSUES. Draw your own conclusions.

Who[m] can propose an EXECUTIVE ORDER OR AMENDMENT?

E.O. 11030 details procedures for Executive Order review and issuance and details that any head of a department or agency can submit a suggested EO or amendment.

Two suggestions of E.Os I made that survived review and issuance by then President Carter were E.O. 11990 and 11988 concerning wetlands and floodplain management. They still exist.

E.O.,11030 also requires that the AG review each proposed order for legal sufficiency but not necessarily policy.

And perhaps a footnote to history!

E.O. 12148 was issued in July 1979 as the second EXECUTIVE ORDER implementing President Carter’s Reorganization No. 3 of 1978 creating FEMA. It largely served as the charter of FEMA until FEMA was disestablished by the Homeland Security Act of 2002 and then its re-establishment by PKEMRA 2006.

Comment by William R. Cumming

January 25, 2015 @ 12:52 am

Will discuss the Fire Prevention and Control Act of 1974, as amended next FFF.

Also 20 years out from the Japanese Kobe Earthquake. At the time Kobe was Japan’s largest port by traffic.

Comment by William R. Cumming

January 25, 2015 @ 12:55 am

Wiki Extract:

The Great Hanshin earthquake (???????? Hanshin Awaji daishinsai?), or Kobe earthquake, occurred on Tuesday, January 17, 1995, at 05:46 JST (January 16 at 20:46 UTC) in the southern part of Hy?go Prefecture, Japan. It measured 6.8 on the moment magnitude scale (USGS),[2] and Mj7.3 (adjusted from 7.2) on JMA magnitude scale.[3] The tremors lasted for approximately 20 seconds. The focus of the earthquake was located 16 km beneath its epicenter,[3] on the northern end of Awaji Island, 20 km away from the city of Kobe.

Approximately 6,434 people lost their lives (final estimate as of December 22, 2005); about 4,600 of them were from Kobe.[1] Among major cities, Kobe, with its population of 1.5 million, was the closest to the epicenter and hit by the strongest tremors. This was Japan’s worst earthquake in the 20th century after the Great Kant? earthquake in 1923, which claimed more than 105,000 lives. The 1995 earthquake caused approximately ten trillion yen ($100 billion) in damage, 2.5% of Japan’s GDP at the time.

Comment by William R. Cumming

January 26, 2015 @ 12:00 pm

A Monday Morning New Issue: DRONE DEFENSE- As one lands on WH lawn?

Comment by William R. Cumming

January 28, 2015 @ 7:59 am

Apparently a DHS official identified DRONE THREATS as one of the top three HS threats to the MSM but refused to identify the other two.

DRONES were the biggest attraction at this years Las Vegas consumer electronics show!

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