I believe this list might be of interest generally. I no longer have the underlying correspondence and should not be considered inclusive for several reasons. First, these letters were all unclassified. Second, DOJ/OLC opined on several FEMA programs and those are not on the list. First, long ago they opined that the loyalty oath provision in the Federal Civil Defense Act, Public Law 920, 81st Congress was unConstitutional and should not be enforced by the Defense Civil Preparedness Agency that was one of five predecessors to FEMA. I had two copies of that opinion. One I gave to the then GC of FEMA who was working personally the repeal of the FCDA of 1950. When sent to the HILL as rep of FEMA I personally handed a copy of the opinion to the Chief Counsel of the House Armed Services Committee and recommended that the loyalty oath provision NOT be included in the Stafford Act. Unfortunately it was included by Public Law 103-337 and is still included despite all my efforts to have it removed. Second, the provisions of the Stewart McKinney Act that authorized the Emergency Food and Shelter Program were ruled unConstitutional by OLC/DOJ on the basis that the grants went to religiously based organization who might prosletyze based on their beliefs. I believe but am not certain that this opinion was NEVER formally withdrawn.
There is definitely classified correspondence which exists between DOJ and FEMA during its existence as an Independent Executive Branch agency from April 1, 1979 to March 1, 2001.
I hope publication of this list is of utility. At least twice in my time in FEMA, DOJ made major efforts to have FEMA abolished.
4/24/98
UNCLASSIFIED CRITICAL CORRESPONDENCE
OF THE DEPARTMENT OF JUSTICE ON FILE
IN FEMA OGC CONCERNING FEMA AUTHORITIES,
PROGRAMS, FUNCTIONS, AND ACTIVITIES
1. Letter from John M. Harmon, Assistant Attorney General, Office of Legal Counsel, DOJ to George Jett, General Counsel FEMA, dated October 24, 1980, subject: Presidential Emergency Action Documents (4 pages).
2. Memorandum from Theodore B. Olsen, Assistant Attorney General, Office of Legal Counsel, DOJ to George W. Jett, General Counsel, FEMA, dated June 28, 1981, RE: Disaster Assistance and the Supremacy Clause (4 pages).
3. Letter from Larry I. Simms, Deputy Assistant Attorney General, Office of Legal Counsel, DOJ to Louis O. Giuffrida, Director, FEMA, dated March 30, 1982, concerning Presidential succession and Exercises Nine Lives III and IV (2 pages).
4. Letter from Larry L. Simms, Deputy Assistant Attorney General, Office of Legal Counsel, DOJ to Bennett L. Lewis, Executive Deputy Director, FEMA, dated July 22, 1982, concerning FPC-24 and the NDER program (2 pages).
5. Memorandum from Larry Simms, Deputy Assistant Attorney General, Office of Legal Counsel, DOJ to Rudolph W. Giuliani, Associate Attorney General, dated November 19, 1982, Re: Use of the Disaster Relief Act of 1974, 42 U.S.C. §5122 et seq. (14 pages).
6. Memorandum from Robert B. Shanks, Deputy Assistant Attorney General, Office of Legal Counsel, DOJ to George W. Jett, General Counsel, FEMA, dated December 5, 1983, Re: Emergency Mobilization Preparedness Board (5 pages).
7. Letter from William French Smith, Attorney General, to Robert C. McFarlane, Assistant to the President for National Security Affairs, dated August 2, 1984, concerning FEMA role in emergency management (2 pages).
8. Memorandum from Louis O. Giuffrida, Director, FEMA, to Edwin Meese III, Attorney General, dated October 17, 1984, concerning standby legislation known as the Defense Resources Act (DRA) (2 pages).
9. Memorandum from Louis O. Giuffrida, Director, FEMA, to Edwin Meese III, Counselor to the President [Mr. Meese's confirmation as AG was pending] and Robert C. McFarlane, Assistant to the President for National Security Affairs, dated January 2, 1985, subject: Executive Order 11490 Revisions (3 pages). [E.O. 11490(October 1969) was superceded by E.O 12656(November 1988)]
10. Letter from Phillip D. Brady, Acting Assistant Attorney General, Office of Legislative and Intergovernmental Affairs, DOJ, to David A. Stockman, Director, Office of Management and Budget, dated May 24, 1985, concerning DOJ views on FEMA draft bill "Disaster Relief Act Amendments of 1985" (10 pages).
11. Letter from Michael B. Hirsch, Attorney-Advisor, Office of General Counsel, FEMA, to Jeff Fogel, Senior Counsel, Criminal Division, DOJ, dated August 1, 1985, concerning proposed statutory revisions to the Disaster Relief Act of 1974 (2 pages w/o enclosures).
12. Letter from D. Jerry Rubino, Director, Security Staff, Justice Management Division, DOJ, to Sean P. Foohey, Acting Chief, Federal Planning Division, National Preparedness Directorate, FEMA, dated November 6, 1985, concerning activation of the NDER (2 pages).
13. Letter from Edwin Meese III, Attorney General, to James C. Miller III, Director, Office of Management and Budget, dated December 13, 1985, concerning FEMA's draft bill entitled "Disaster Relief Act Amendments of 1985" (2 pages).
14. Letter from Julius W. Becton, Director, FEMA, to Edwin Meese III, dated January 15, 1986, concerning item 13 above (1 page).
15. Letter from D. Jerry Rubino, Director Security Staff, Justice Management Division, DOJ, to James Miskel, Acting Chief, Readiness Division, FEMA, dated September 25, 1986, providing comments on draft Major Emergency Action (MEA) documents (4 pages).
16. Letter from Harry H. Flickinger, Acting Assistant Attorney General for Administration, DOJ, to Sean Foohey, Acting Chief Planning Division, National Preparedness Directorate, FEMA, dated March 18, 1987 concerning National Emergency Response Structure (NERS) (3 pages).
17. Letter from Mark M. Richard, Deputy Assistant Attorney General, Criminal Division, DOJ, to Ronald C. St. Martin, Senior Director, Crisis Management Center, National Security Council, dated March 23, 1987, concerning a consolidated National Security Plan (4 pages).
18. Memorandum from Edwin Meese III, Chairman Pro Tem, Domestic Policy Council [also Attorney General] to the Domestic Policy Council, dated January 19, 1988, transmittal of the National System for Emergency Coordination (5 pages).
19. Letter from Edwin Meese III, Attorney General, to Julius W. Becton, Jr., Director, FEMA, dated August 11, 1988, concerning pending revocation of E.O. 10421 [revoked by E.O. 12656] (1 page).
Also after my retirement DOJ directly contradicted Director Allbaugh's position in his briefing of the HILL on FEMA's role in Terrorism. This was post the Bush White House announcement that FEMA would be the domestic lead until VP Richard Cheney completed his review of Executive Branch terrorism assignments. This assignment took place in a WH press conference with accompanying news release on May 9th, 2001. And this review was NOT completed prior to 9/11/2001.
