Homeland Security Watch

News and analysis of critical issues in homeland security

November 6, 2015

Friday Free Forum

Filed under: General Homeland Security — by Philip J. Palin on November 6, 2015

William R. Cumming Forum

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16 Comments »

Comment by William R. Cumming

November 6, 2015 @ 2:41 am

First a history lesson leading to discussion of resilience and non-governmental organizations: Why? The non-profit section is not always tax exempt–example Sierra Club! But many many NGO’s are nonprofit and/or tax exempt.

Wiki extract:

THE STATUTE OF CHARITABLE USES AND THE ENGLISH ORIGINS OF
AMERICAN PHILANTHROPY
Philanthropy has many dimensions. In scripture, it is an intensely personal
commitment to following the example of Christ by healing the sick, feeding the poor,
and helping the helpless. With the institutionalization of the church, however,
philanthropy and charity became a property relation as well. And, over time, medieval
law began to treat property set aside for eleemosynary purposes in a variety of special
ways.
Medieval England, combining Christian ideals, Roman precedents, and Common
Law, permitted charitable donors to entrust property — usually to the church or other
public authorities — for charitable purposes. These endowments were part of a complex
of activities involving the Crown, noble families, the church, municipal bodies, gilds,
and other essentially public entities through which poverty, dependency, and other
needs were attended to.
The political, economic, social, and religious turbulence of the sixteenth century —
England’s break with the church of Rome, confiscation of the enormous land holdings
of the monastaries, struggles over the Tudor succession, the rise of the urban middle
classes and the landed gentry and the dispossession of the peasantry — contributed to a
disintegration of the traditional institutions of charity and social welfare. As a
nineteenth century commentator noted,
the ideal of charity had been degraded. A self-regarding system of relief had
superceded charity, and it was productive of nothing but alms, large or small,
isolated and unmethodic, given with a wrong bias, and thus almost inevitably
with evil results. . . . The larger issues were overlooked. Then the property of the
hospitals and the gilds was wantonly confiscated, though the poor had already
lost that share in the revenues of the church to which at one time they were
admitted to have a just claim. A new beginning had to be made. The obligations
of charity had to be revived. A new organization of charitable relief had to be
created, and that with an empty exchequer and after a vast waste of charitable
resources. There were signs of new congregational and parochial energy, yet the
task could not be entrusted to the religious bodies, divided and disunited as they
were. In their stead it could be imposed only on some authority which
represented the general community, such as municipalities; and in spite of the
centralization of the government there seemed some hope of creating a system
of relief in connexion with them (Loch, 1911, p. 879).
2
The reordering of the law of charity represented by Elizabeth’s 1601 Statute of
Charitable Uses was part of a broader reorganization of the system of public and
private responsibilities for the poor and dependent. With the Poor Relief Act of 1601,
parliament placed the administration of poor relief in the hands of municipal
authorities. At the same time, the Statute of Charitable Uses sought to rationalize the
administration of private charities — to specify the purposes for which funds could be
devoted to charity, to ensure such funds were applied to the uses specified by donors,
and to place the private charity under the supervision of the State. In practice, this
supervisory power was delegated, as the Statute notes, to the bishops. But the Lord
Chancellor retained ultimate authority.
Few laws are more important — or more misunderstood — than Elizabeth’s 1601
Statute of Charitable Uses. The preamble to the Statute sets forth the purposes for
which property might be set aside for charitable purposes and, at the same time,
provides a rich overview of the range of philanthropy in Elizabethan England. In their
ignorance of law and history, Americans, whether they favored or opposed the concept
of institutionalized charity, pointed to it as the legal foundation for the special treatment
of property set aside for philanthropic purposes. Accordingly, many states (including
New York, Pennsylvania, and Virginia) erroneously believed repudiating the Statute
would enable them to halt or limit the creation of charities. While the high profile 1844
litigation involving the estate of multimillionaire Steven Girard definitively established
that charities under the common law rested on other bases than the 1601 Statute – and
in doing so placed charities on a firm foundation under federal law –, states hostile to
private charity passed their own charities statutes that superceded English statutes and
precedents.
The issues with which that Statute is concerned – the purposes for which charities
can be established and the regulatory and supervisory powers of government – are still
contested issues today. Indeed, the evolution of charities law has been – and continues
to be – profoundly affected by whether or not, in the distant past, state legislatures
embraced or rejected the Statute.
The Statute of Charitable Uses Act (1601), 43 Elizabeth I c. 4
An Acte to redresse the Misemployment of Landes Goodes and Stockes of Money
heretofore given to Charitable Uses
3
Whereas Landes Tenementes Rentes Annuities Profittes Hereditamentes, Goodes
Chattels Money and Stockes of Money, have bene heretofore given limitted appointed
and assigned, as well by the Queenes most excellent Majestie and her moste noble
Progenitors, as by sondrie other well disposed persons, some for Releife of aged
impotent and poore people, some for Maintenance of sicke and maymed Souldiers and
Marriners, Schooles of Learninge, Free Schooles and Schollers in Universities, some for
Repaire of Bridges Portes Havens Causwaies Churches Seabankes and Highwaies,
some for Educacion and prefermente of Orphans, some for or towardes Reliefe Stocke
or Maintenance of Howses of Correccion, some for Mariages of poore Maides, some
for Supportacion Ayde and Helpe of younge tradesmen Handicraftesmen and persons
decayed, and others for reliefe or redemption of Prisoners or Captives, and for aide or
ease of any poore Inhabitantes concerninge paymente of Fifteenes, setting out of
Souldiers and other Taxes; Whiche Landes Tenementes Rents Annuities Profitts
Hereditaments Goodes Chattells Money and Stockes of Money nevertheles have not
byn imployed accordinge to the charitable intente of the givers and founders thereof,
by reason of Fraudes breaches of Truste and Negligence in those that shoulde pay
delyver and imploy the same: For Redresse and Remedie whereof, Be it enacted by
Aucthoritie of this presente Parliament, That it shall and may be lawfull to and for the
Lorde Chauncellor or Keeper of the Greate Seale of Englande for the tyme beinge, and
for the Chauncellor of the Dutchie of Lancaster for the tyme beinge for Landes within
the Countie Palatine of Lancaster, from tyme to tyme to award Commissions under the
Greate Seale of Englande, or the Seale of the Countie Palatine as the case shall require,
into all or any parte or partes of this Realme respectivelie, according to their severall
Jurisdiccions as aforesaide, to the Bishoppe of everie severall Diocesse and his
Chanceller, in case there shalbe any Bishoppe of that Diocesse at the tyme of awardinge
of the same Commissions, and to other persons of good and sounde behaviour,
authorisinge them therebie, or any fower or more of them, to inquire, as well by the
Oathes of Twelve lawfull Men or more of the Countie, whereunto the saide parties
interessed shall as by all other good and lawfull waies and menes, of all and singuler
such Giftes Limitacions Assignements and Appoyntments aforesaide, and of the Abuses
Breaches of Trustes Negligences Mysimploymentes, not imployinge concealinge
defraudinge misconvertinge or misgovernmente, of any Landes Tenementes Rentes
Annuities Profits Hereditaments Goods Chattels Money and Stockes of Money
heretofore given limitted appointed or assigned, or whiche hereafter shalbe given
limitted appointed or assigned, to or for any the charitable and godlie uses before
rehearsed: And after the saide Commissioners or any fower or more of them, upon
callinge the parties interessed in any suche Landes Tenementes Rentes Annuities Profits
Hereditaments Goodes Chattels Money and Stockes of Money, shall make inquirie by
the Oathes of twelve men or more of the saide Countie, whereunto the saide parties
interessed shall and maye have and take their lawfull challenge and challenges; and
upon suche inquiry hearinge and examinynge thereof set downe suche Orders
Judgments and Decrees, as the saide Landes Tenementes Rents Annuities Profits Goods
Chattels Money and Stockes of Money may be duelie and faithfullie imployed, to and
for suche of the charitable uses and intents before rehearsed respectivelie, for whiche
they were given limitted assigned or appointed by the Donors and Founders thereof:
whiche Orders Judgements and Decrees, not being contrarie or repugnante to the
Orders Statutes or Decrees of the Donors or Founders, shall by the Authoritie of this
presente Parliamente stand firme and good accordinge to the tenor and purporte
thereof, and shalbe executed accordinglie, untill the same shalbe undon or altered by
4
the Lorde Chauncellor of Englande or Lorde Keeper or the Greate Seale of Englande, or
the Chauncellor of the Countie Palatine of Lancaster, respectivelie within their severall
Jurisdiccions, upon complainte by any partie grieved, to be made to them. Provided
alwaies, That neither this Acte, nor any thinge therein conteined, shall in any wise
extende to any Landes Tenements Rents Annuities Profits Goods Chattels Money or
Stockes of Money, given limitted appointed or assigned, or whiche shalbe given
limitted appointed or assigned, to any Colledge Hall or Howse of Learninge within the
Universities of Oxforde or Cambridge, or to the Colledges of Westminster Eaton or
Winchester, or any of them, or to any Cathedrall or Collegiate Churche within this
Realme. And provided alsoe, That neither this Acte nor any thinge therein shall
extende to any Citie or Towne Corporate, or to any the Landes Tenements given the
uses aforesaide within any such Citie or Towne Corporate, where there is a speciall
Governor or Governors, appointed to governe or directe suche Landes Tenements or
Things disposed to any the uses aforesaide; neither to any Colledge Hospitall or Free
Schoole whiche have speciall Visitors or Governours or Overseers appointed them by
their founders. Provided also and be it enacted by the Authoritie aforesaide, That
neither this Acte nor any thinge therein contained shalbe any way prejudiciall or
hurtfull to the Jurisdiccion or Power of the Ordinarie; but that he may lawfullie in everie
cause execute and performe the same as thoughe this Acte had never bene had or
made. Provided also and be it enacted, That noe person or persons that hathe or shall
have any of the saide Landes Tenements Rents Annuities Profits Hereditaments Goods
Chattels Money or Stockes of Money in his Hands or Possession, or dothe or shall
pretende Title thereunto, shall bee named Commyssioner or a Juror for any the causes
aforesaide, or beinge named shall execute or serve in the same. And provided alsoe,
That no person or persons which hathe purchased or obteyned, or shall purchase or
obteyne, upon valuable Consideracion of Money or Lande, any Estate or Intereste, of in
to or out of any Landes Tenements Rents Annuities Hereditaments Goods or Chattels
that have bene or shalbe given limitted or appointed to any the charitable uses above
mencioned, withoute Fraude or Covyn, havynge no Notice of the same Charitable Use,
shall not be impeached by any Decrees or Orders of Commissioners above mencioned
for or concernynge the same his Estate or Interests. And yet nevertheless Be it
enacted, That the saide Commissioners, or any Fower of more of them, shall an may
make Decrees and Orders for recompense to be made by any person or persons whoe,
beinge put in Truste or havynge notice of the charitable Uses above mentioned, hathe
or shall breake the same Truste, or defraude the same Uses, by any Conveiance Gifte
Graunte Lease Demise Release or Conversion whatsoever, and againste the Heires
Executors and Admynistrators of hym them or any of them, havynge Assettes in Law
or Equitie, soe farre as the same Assettes will extende. Provided alwaies, That this Acte
shall not extende to give Power or Authority to any Commissioners before mentioned:
to make any Orders Judgements or Decrees for or concernynge any Mannors Lands
Tenements or other Hereditaments assured conveied graunted or come unto the
Queenes Majestie, to the Late Kinge Henrie the Eighte, Kinge Edwarde the Sixte, or
Queene Marie, by Acte of Parliament Surrender Exchange Relinquishemente Escheate
Attainder Conveiance or otherwise. And yet nevertheless Be it enacted, That if any
suche Mannors Landes Tenements or Hereditaments, or any of them, or any Estate
Rente or Profitte thereof or oute of the same or any parte thereof, have or hathe byn
given granted limitted appointed or assigned to or for any the charitable uses before
expressed, at anye tyme sithence the begynynge of her Majesties Reigne, that then the
saide Commissioners or any fower or more of them shall and maye, as concerninge the
5
same Landes Tenements Hereditaments Estate Rente or Profit soe given limitted
appointed or assigned, procede to enquire and to make Orders Judgements and
Decrees accordinge to the purporte and meaninge of this Acte as before is mentioned:
The saide last Proviso notwithstandinge. And be it further enacted, That all Orders
Judgments and Decrees of the saide Commissioners, or of any fower or more of them,
shalbe certified under the Seales of the saide Commissioners or any fower or more of
them, either into the Courte of the Chauncerie of Englande, or into the Courte of the
Chauncerie within the Countie Palatine of Lancaster, as the case shall require
respectivelie accordinge to their severall Jurisdiccions, within suche conveniente tyme as
shalbe limitted in the saide Commissions; And that the saide Lorde Chancellor or Lorde
Keeper, and the saide Chauncellor of the Duchie, shall and maye, within their saide
severall Jurisdiccions, take suche Order for the due Execucion of all or any of the saide
Judgments Decrees and Orders as to either of them shall seeme fit and convenient: And
that if after any such certificattes made any person or persons shall fynde themselves
grieved withe any of the saide Orders Judgments or Decrees that then it shall and
maybe lawful to and for them or anie of them to complaine in that behalfe unto the
saide Lorde Chancellor or Lorde Keeper, or to the Chancellor of the saide Duchie of
Lancaster, accordinge to their severall Jurisdiccions, for Redresse therein; And that upon
suche Complainte the saide Lorde Chancellor or Lorde Keeper, or the saide Chancellor
of the Duchie may, accordinge to their saide severall Jurisdiccions, by suche course as to
their wisedomes shall seeme meeteste, the circumstances of the case considered,
proceede to the examinacion hearinge and determynynge thereof; and upon hearinge
thereof shall and may adnull dymynishe alter or enlarge the saide Orders Judgements
and Decrees of the saide Commyssioners, or any fower or more of them, as to either of
them, in their saide severall Jurisdiccions, shalbe thoughte to stande withe Equitie and
good Conscience, accordinge to the true intente and meaninge of the Donors and
Fownders thereof; and shall and may taxe and awarde good Costes of Suite by their
discrecions againste such persons as they shall fynde to complaine unto them, without
juste and sufficient cause, of the Orders Judgments and Decrees before mencioned.
6
Source: Austin Wakeman Scott, Select Cases and Other Authorities on the Law of
Trusts (Cambridge, 1940).
Additional Readings:
George A. Billias, ed. Law and Authority in Colonial America (Barre,
1965).
Edith L. Fisch, “American Acceptance of Charitable Trusts,” Notre Dame
Lawyer 28:219-33 (Winter 1953).
Julius Goebel, Jr., “King’s Law and Local Custom in Seventheenth Century
New England,” Columbia Law Review 31:416-448 (1931).
Wilber K. Jordan, The Charities of London, 1480-1660 (New York, 1960).
________________, Philanthropy in England, 1480-1660 (New York, 1959).
Peter Laslett, The World We Have Lost (New York, 1965).
Howard S. Miller, The Legal Foundations of American Philanthropy, 1776-
1844 (Madison, WI., 1961).
William E. Nelson, Americanization of the Common Law: The Impact of
Legal Change on Massachusetts Society, 1760-1830 (Cambridge, 1975).
7
Irvin G. Wyllie, “The Search for An American Law of Charity, 1776-1844,”
Mississippi Valley HIstorical Review 46:203-221 (September 1959).
Carl Zollman, American Law of Charities (Milwaukee, 1924).

Comment by William R. Cumming

November 6, 2015 @ 2:58 am

In the above discussion some may wonder at charitable organizations that are involved in disaster relief.

Most charitable organizations are derived from charitable trusts which in all states are overseen by the Offices of the various attorney generals charged with enforcing the terms of private charitable trusts. This is almost never done, however.

The Stafford Act allows nonprofit organizations [they do not have to be tax-exempt] to receive Public Assistance under that statute since 1974 if they provide a community service. Thus, from private libraries to ballet companies the nonprofit recipients of federal disaster outlays have grown since 1974 both in numbers and funding levels.

And some charitable organizations are not just claimants but providers of disaster relief and recovery. The ARC [American Red Cross] has a federal charter dating back to the beginnings of the last century. It is specifically mentioned in the Stafford Act. And it has many mission assignments during declared disasters although no longer the lead for ESF 6 Mass Care. And the ARC does bill FEMA. Prior to 1993 the FEMA Director was an ex officio member of the ARC board.

All the nonprofits involved in disaster relief do so with written agreements with FEMA although none of these have been subject to either financial audit or legal review.

Comment by William R. Cumming

November 6, 2015 @ 3:02 am

My point in my earlier comments is for one reason only! But first the question is can the citizens and residents of the U.S.A. and charitable donors rely on these NGO’s and nonprofits to provide reliable services post disaster? What is their actual capability? And how does FEMA leadership and staff know of this capability?

Comment by William R. Cumming

November 6, 2015 @ 3:06 am

I have commented on this blog and elsewhere that no one really knows who will show up post-disaster! What training will the responders have? What funding? What equipment? Who are they?
What is their planning basis for response and will they in turn need federal assistance?

Has there ever been Congressional oversight of this system? NO!

Has FEMA and DHS OIG staff ever reviewed this system? NO!

Comment by William R. Cumming

November 6, 2015 @ 3:09 am

The entirety of the federal disaster relief system needs comprehensive review to determine what organizations are claimants and what are resource providers? Much the same as former FPC 6 issued by the FPA in GSA before FPA became part of FEMA in 1979.

Comment by Claire Rubin

November 6, 2015 @ 7:07 am

One could make a similar statement about houses of worship and their interest and capacity to contribute to response and recovery efforts in an impacted community.
We have little to no idea what they likely to do.

Prior to the formation of FEMA, local houses of worship had a larger role in disasters than they do presently.

Comment by William R. Cumming

November 7, 2015 @ 5:57 am

Claire! Thanks for this comment. It should be noted that many religions in the US have received federal, state, and local tax exemption. Many hospitals that were owned by various religions have now been sold to profit making owners. But given the history one might wonder if the withdrawal of charitable work by churches might well result in a modern MORTMAIN statute. Henry VIII finished off many of the religious orders in
England when he seized real property and other assets when he became head of the Church of England.

I live in Tidewater Virginia where there was an established state religion before the American Revolution. Thanks to Thomas Jefferson that system was ended.

Comment by Citizen Joe

November 7, 2015 @ 8:28 am

….and the simple answer William, no one will respond to such calamity for the resources are simply not available nor the American spirit to even help one another so with a government so hell bent on “enslaving” the populace with its freebies, the real truth – no matter your political party affiliation – when the real 911 calls come in and no one shows up, God Bless those who have faith in these moments of despair for those who truly believe and understand the importance of our Judeo-Christian principles and way of Life and in strong support of a Democracy with strength…well, one is never alone and all such are in the loving embrace of the Lord!

God Bless our police officers, our firefighters and EMT’s, however the lawlessness we see encouraged by the divisiveness spewed directly from this White House and a debt ceiling now to allow an already bankrupt nation in values become even more bankrupt by design, well the future is quite clear….more and more anarchy on our streets and fewer and fewer able and willing to protect the innocent souls. God Bless each of us — How dare you?

Our beloved America and the Constitution and all that we are as a nation who understood that with a strong arsenal and as a People with strong moral character and fortitude to preserve our beloved Republic and to lend a hand to the oppressed, we have allowed our nation to falter and to fall into the hands of Lucifer and his world and again as I have stated for a number of years now and so scorned, we now await for the return of Karl Theodor zu Guttenberg to take the reigns of Germany from Merkel and while scripture dictates the future of East Jerusalem given our unwillingness to repent and to see ourselves give up our identity and dismiss the oh so many who have given their Life or limb to protect our Democracy and the laws we are required to enforce and we see both political parties falter, karl Theodor zu Guttenberg will lead Germany into the void left by a very much weakened America and Germany will dupe even the Hebrew and lead us into a third World War and this is without question and as clearly directed by our readings and understanding and our observations right here in Washington DC where corruption and the intentional lawlessness among elected officials is permitted…what a pity!

God Bless America! ]

Citizen Joe

Comment by America First!

November 8, 2015 @ 10:37 pm

William,

When it comes to our Sovereign Homeland Security and despite this White House and the “Chicago-Hollywood-Washington charade” we have seen here from “Main Street USA” where our nation’s armed forces have been so diminished, our good Judeo-Christians and our intent to reach to the oppressed in genuine expression of wanting to help those who no longer want to be subjected to tyrants, our deficits soaring and both sides of the aisle much like good ‘ol Ms. Hillary dismissing her oath and pledge to our beloved Republic rather than the Clinton Foundation, a poem you will find worthy:

If – Poem by Rudyard Kipling
If you can keep your head when all about you
Are losing theirs and blaming it on you;
If you can trust yourself when all men doubt you,
But make allowance for their doubting too:
If you can wait and not be tired by waiting,
Or, being lied about, don’t deal in lies,
Or being hated don’t give way to hating,
And yet don’t look too good, nor talk too wise;

If you can dream—and not make dreams your master;
If you can think—and not make thoughts your aim,
If you can meet with Triumph and Disaster
And treat those two impostors just the same:.
If you can bear to hear the truth you’ve spoken
Twisted by knaves to make a trap for fools,
Or watch the things you gave your life to, broken,
And stoop and build’em up with worn-out tools;

If you can make one heap of all your winnings
And risk it on one turn of pitch-and-toss,
And lose, and start again at your beginnings,
And never breathe a word about your loss:
If you can force your heart and nerve and sinew
To serve your turn long after they are gone,
And so hold on when there is nothing in you
Except the Will which says to them: “Hold on!”

If you can talk with crowds and keep your virtue,
Or walk with Kings—nor lose the common touch,
If neither foes nor loving friends can hurt you,
If all men count with you, but none too much:
If you can fill the unforgiving minute
With sixty seconds’ worth of distance run,
Yours is the Earth and everything that’s in it,
And—which is more—you’ll be a Man, my son!

Rudyard Kipling

Submitted by:

Christopher Tingus
“Main Street USA”
PO Box 1638
Harwich (Cape Cod), MA 02645 USA
chris.tingus@gmail.com

*We await the return of Karl Theodor zu Guttenberg to take the torch from Merkel and lead Germany and a revamped ten (10) EU nation state while America wallows in its own disgraceful ways allowing politician to dictate the course of our Judeo-Christian nation! How dare you?

Comment by Christopher Lambiase

November 9, 2015 @ 7:28 pm

The practice of intelligence must always change because the way we gather intelligence changes as well. Sometimes we may have the intelligence but we do not piece together the mosaic. Eric J. Dahl published a book, Intelligence and Surprise Attack, it really provides a good insight to intelligence practices. Mr. Dahl uses Pearl Harbor, the Battle of Midway and 9/11 as ways in which the intelligence may have been successful but the communication was not present. Overall this book is good for seeing intelligence practices used in historic examples.

Comment by William R. Cumming

November 10, 2015 @ 1:59 am

Thanks CL and agree!

Comment by William R. Cumming

November 10, 2015 @ 8:59 am

35 Members of Congress have written to their colleagues requesting a new AUMF [Authorization for the Use of Military Force] in MENA [Middle-Easty north Africa]. The current AUMF became law in fall 2001 and has never been amended or superseded.

Hoping someone will ask the Candidates in the rest of the 2016 Presidential debates for their position on this question.

President Obama did send the Congress a message requesting a new AUMF but it did not request a supersession or recission of the 2001 AUMF. Thus, both Congress and the President both war-lovers and merchants of death IMO continue to evade the Constitutional design with respect to war-making.

Comment by William R. Cumming

November 10, 2015 @ 6:56 pm

While the U.S. Court of Appeals for the Fifth Circuit ruled 2-1 against the Administration looks like the Administration will seek Certiorari!

Perhaps time for Youngstown Sheet & Tuber v. Sawyer [1951] to be updated. In striking down the seizure of the steel mills by President Truman [Sawyer was AG] all nine SCOTUS judges issued an opinion on the implied power of a President.

Note that perhaps the greatest Constitutional violation by a President was Tom Jefferson’s purchase of Louisiana Territory by the US from Napoleon B.

Comment by William R. Cumming

November 11, 2015 @ 7:32 am

Well all the candidates seemed to me to be swinging for the fences in last night’s two debates. The next Republican debate scheduled for December 15th.

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