THE CIVIL DEFENSE LEGACY

TECHNICAL BULLETIN
March 2007
This version contains full text of NSDD 66

THE CIVIL DEFENSE LEGACY

[Portions of this article were originally published in the February 2004 issue of the Journal of Civil Defense, Vol. 37 No.2, pp3-6. The Journal is published by the American Civil Defense Association (TACDA), P.O. Box 1057, 118 Court Street, Starke, Florida 32091, Toll-free at 800-425-5397 or direct at 904-964-5397, www.tacda.org]

BACKGROUND:

With completion of the first four years of the existence of the Department of Homeland Security created by the Homeland Security Act of 2002, Pub.L. 107-296 (November 25, 2002) it becomes timely to assess whether the legacy of the civil defense programs, functions, and activities authorized by the enactment of the Federal Civil Defense Act of 1950 (pub.L. 81-920) and largely terminated with repeal of that statute by Pub.L. 103-337 in 1994 continue to impact homeland security and homeland defense thinking. (DHS has been in existence since March of 2003.)

It must be remembered that the perceived greatest threat during the life of the civil defense program was strategic nuclear attack by nation states as opposed to WMD threats or employment by non-state terrorists. It is argued in this review, however, that some of the programs, functions, and activities funded or stimulated by the civil defense effort from 1950-1994 and its research have value in the new
milieu of homeland security and homeland defense. And most certainly by the passage of the next 25 years it is certainly conceivable that more than twenty-five nations will have both ballistic missile capability and nuclear weapon capability. Perhaps just as the writings of the Greeks and Romans were saved by Irish monks clinging to the rocks off the coast of Ireland, the research and analysis of the 44 year long civil defense program will have application to future events. An extensive collection of civil defense research and contract scholarship exists in FEMA at the moment but is threatened with dispersal or destruction.

DISCUSSION:

First, from the standpoint of personnel and organization, no current leadership either in DHS or the soon to be reconstituted Federal Emergency Management Agency (FEMA) served in an appointive or civil service capacity in those programs, functions, or activities authorized and appropriated pursuant to Public Law 81-920. * Why? The Civil Defense programs, functions, and activities were housed in the Department of the Army as a civil agency from 1961-1972 when the Defense Civil Preparedness Agency became an independent civil agency in the Pentagon and reported to the Deputy Secretary of Defense instead of the Secretary of the Army.

* The numbering of Public Laws by both the Congress and law number is adopted for this paper although not technically used until the 1960's.

Rather than strengthening the civil defense program, this agency transfer relieved the Secretary of the Army from the advocacy role. In this pre-Goldwater-Nichols Act (1986) period this left program advocacy to a relatively junior executive level appointee, John W. Davis (former Governor of North Dakota). The civil defense program was about to be sorely impacted by the trident of outside events: (1) revision of strategic attack doctrine, specifically MAD (Mutual Assured Destruction); (2) fallout from the Watergate Scandal and Congressional interest prompted by the National Governor's Association in developing so-called "one-stop shopping" for state and local governments obtaining federal disaster aid; (3) and finally newly developed knowledge of the potential of the so-called "Nuclear Winter" effect should the full SIOP (Strategic Integrated Operations Plan) ever be executed by the United States or Soviet Union.

The civil defense program whatever its technical merits was the one continuous link between the military and civil population from its enactment. Now it would leave to the civilian side of government to nurture and protect this linkage. The importance of the civil agencies growing role in crisis management and response and recovery in large-scale catastrophes was about to be tested in Tropical Storm Agnes, at that time the largest civil disaster for which the Federal government took responsibility since the 1927 Mississippi floods written about by John Barry in his book "Rising Tide" although as is obvious the event was riverine event and definitely not a tidal surge event. Tropical storm Agnes was to lead to improved federal disaster legislation when the Disaster Relief Act of 1974 (pub.L. 93-288) was enacted in late May 1974. The Flood Disaster Protection Act of 1973 had become law at the end of 1973 and was a major component in the design of the DRA of 1974. A long term impact of the DRA of 1974 was the first authorization for NGO's performing community service to be recipients of federal disaster relief. Throughout its history the civil defense program had been largely staffed by veterans at the federal, state, and local level. Now with the end of the draft and post-Vietnam reductions in the size of the military fewer and fewer former military personnel were to become employees of civil agencies.

As of 1972, DCPA had approximately 1400 personnel and that was down from peak strength of almost 1800 in the late 1960's after the Kennedy build up. Over 200 employees were involved in an elaborate search and rescue program largely terminated in the 1970's and then revived by FEMA during the administration of George H.W. Bush. That program was again almost bureaucratically terminated six weeks before the attack on the Murrah Building at Oklahoma City in 1995. Fortunately it has so-far survived to prosper. In 1974, lack of support from the Gerald Ford administration resulted in an almost total collapse of the civil effort to defend civil defense programs, functions, and authorities in the budget wars. This resulted in RIFs (Reduction-in-Force) for DCPA in 1974 and 1977. By the time FEMA was established and augmented by civil defense assets by OMB determination order and E.O. 12148 (July 15, 1979), less than 1000 FTE's (Full Time Equivalents) were transferred from DCPA to FEMA (note this was still the largest transfer of personnel into FEMA.) Annual appropriations by that time had diminished to just over $100M from slightly over $200M. The FEMA library was terminated and documents were either lost or transferred to CRS.

As far as legal authority, several titles of the Federal Civil Defense Act of 1950 were allowed to lapse as had one title at the end of the Korean War in 1953. Of some historical significance is that the lapsed titles would be incorporated into so-called standby legislation, the so-called "Defense Resources Act" including the cross reference to the Defense Production Act of 1950, a key statute attempting to assist in expediting defense production that still is in effect while at the same time minimizing impacts on the civilian economy. The lapsed titles of the DPA were also included in that draft statute. (This unclassified standby document was briefed to several Congressional committees during the administration of President Ronald Reagan. It should be noted that while some critics believe the DPA authority allows the federal government to reorganize the economy no such authority exists, but it does allow the federal government to go to the head of the line during a production shortfall or disruption.

Primarily through egotism and ignorance in the White House during the administration of President Jimmy Carter, the transferred civil defense personnel, even though they dominated the higher ranks of civil servants in FEMA (largely because of the RIFs that had eliminated younger and more junior personnel) were regarded as a budgetary problem because OMB had promised staff savings as a result of the reorganization to Congress, and the defense budget examiners in OMB, particularly those managing the 050 accounts believed that the transfer to word FEMA meant that no defense funds should be used for civil defense. At the time of transfer and until the FY 81 appropriations cycle when civil defense became part of the HUD, VA, Independent Agency Appropriation, the civil defense budget was included in the annual armed services appropriations. Perhaps of some interest is that oversight in Congress of the civil defense budget remained in the Armed Services Committees of the House and Senate until the Act was repealed by Pub.L. 103-337 in 1994.

Because of their classification (all since declassified) certain Presidential Directives were not widely distributed and the civil defense build-up under President Reagan was largely to implement President Carter directives. **

** CARTER PRESIDENTIAL DIRECTIVES RELATING TO the Civil Defense Program

PD-41 U.S. Civil Defense Policy (U)
PD-58 Continuity of Government (U)

REAGAN AND BUSH (41) NATIONAL SECURITY
DIRECTIVES Impacting the Civil Defense Program

1982

1. NSDD 26 Civil Defense Policy (U)
2. NSDD 47 Emergency Mobilization Preparedness (U)

1. NSDD 188 Reorganization of "Emergency Preparedness" Functions (U)
   

1987

1. NSDD 259 Civil Defense (U)

1992

1. NSDD 66 Civil Defense (U)****

Editor's Note:
For text as declassified see "National Security Directives of the Reagan & Bush Administrations- The Declassified History of U.S. Political & Military Policy 1981- 1991" Christopher Simpson (Westview Press, 1995). Also Carter, Reagan, Bush Presidential libraries have online versions of all declassified Presidential and National Security Directives. In the opinion of the editor, NSDD-47 issued in 1982, even though amended in 1985 by NSDD-188 remains a seminal document in the
history of emergency preparedness, mobilization, response and recovery.

Under the major reorganization of FEMA that took place early in the administration of President Reagan a State and Local Programs and Support Directorate was created in the fall of 1981 that lasted until fall of 1993. In that Directorate all civil defense funding of state and local activities was centralized. To the extent that policy arose under the program, the various Presidential Directives attempted to vitiate the civil defense agenda and were largely designed by DOD (Department of Defense) or the NSC (National Security Council) that had retained policy oversight of civil defense in E.O. 12148.

*** The full text of NSDD 66 is an Appendix to this Technical Bulletin.

Editor's Note:
Another controversy the impacted the civil defense program was the so-called "Dual-Use" issue. Although Congress had largely consented to dual-use of civil defense program assets in both natural and attack events, the Ford, and Carter administrations made no adjustment in policy. Then in 1981, Congress amended the Federal Civil Defense Act allowing dual-use as long as it did not detract from attack preparedness. Once again the administration read the word (nuclear) into an adjective modifying attack and little actual adjustment was made in program guidance. To be fair to the Executive Branch, there was little actual response and recovery authority in the civil defense statute and it remained to the end largely a preparedness statute. Juxtaposed to this legislative conundrum, the Disaster Relief Act of 1974 had little in the way of preparedness authority in it except with respect to communication systems. The dual-use debate warped into an all-hazards debate by the earlier 1990's and interesting Congress did address that issue by mandating "all-hazards" as the civil defense approach in 1993 in Pub.L. 103-160. *** Of course one year later the FCDA was repealed except for portions incorporated in to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. Sections 5121 et. Seq.) Oddly the debate absorbed much intellectual capital in the Department of Homeland Security after its formation since from an objective standpoint it was to focus on the threat of "terrorism" and its prevention and response and recovery to its consequences. Of course, as was almost inevitable,
Hurricane Katrina reinforced the notion of "all-hazards."

****Extract from House of Representatives Report 102nd Congress 1st Session

H-Rept.102-60 May 13, 1991

REPORT OF THE COMMITTEE ON ARMED SERVICES ON H.R. 2100
Page 408

"The controversy over the civil defense program stems from the fact that the program has focused on the cause of the disaster [strategic nuclear attack], not on its consequences. Yet, whether a catastrophe is caused by a foreign military attack, terrorism, a technological accident, or nature, the way to deal with the problem is fundamentally the same. A citizen can get the same dose of radiation from a Soviet warhead, a primitive terrorist bomb, a nuclear power plant melt-down, an overturned DOE transport truck or an earthquake hitting a nuclear power plant. The concept of "dual use" of civil defense resources was an effort to bridge the gap between military threats and natural disasters. The committee believes that FEMA should, within its limited funds, maximize its readiness to deal with the types of disasters most likely to occur.

The committee requests that FEMA develop and submit to the committee an outline of the basic emergency resources needed on the Federal level to deal with the types of disasters most likely to occur. This baseline will permit the committee to better assess the sufficiency of the civil defense program."

APPENDIX

[Editors note- While copied from the original several editorial highlights have been added to enhance emphasis. It should also be noted that this was the last Presidential Directive or National Security Directive issued to provide guidance on Civil Defense prior to portions of the Federal Civil Defense Act of 1950, as amended being incorporated in the Robert T. Stafford Disaster Relief and Emergency Assistance Act. Essentially it mandates all-hazards preparedness and was reflected in a formal statutory amendment of the Federal Civil Defense Act of 1950 by Public Law 103-160 in 1993]

THE WHITE HOUSE
WASHINGTON
March 16, 1992

20284

NATIONAL SECURITY DIRECTIVE 66

MEMORANDUM FOR THE VICE PRESIDENT
THE SECRETARY OF STATE
THE SECRETARY OF THE TREASURY
THE ATTORNEY GENERAL
THE SECRETARY OF COMMERCE
THE SECRETARY OF HEALTH AND HUMAN SERVICES
THE SECRETARY OF TRANSPORTATION
THE SECRETARY OF ENERGY
THE DIRECTOR OF THE OFFICE OF MANAGEMENT AND BUDGET
CHIEF OF STAFF TO THE PRESIDENT
ASSIST ANT TO THE PRESIDENT FOR NATIONAL SECURITY AFFAIRS
DIRECTOR OF CENTRAL INTELLIGENCE
CHAIRMAN OF THE JOINT CHIEFS OF STAFF
DIRECTOR OF THE FEDERAL EMERGENCY MANAGEMENT AGENCY
MANAGER, NATIONAL COMMUNICATIONS SYSTEM

SUBJECT:  CIVIL DEFENSE (U)

POLICY

The United States will have a civil defense capability as an element of our overall national security posture. The objective of the civil defense program is to develop the required capabilities common to all catastrophic emergencies and those unique to attack emergencies in order to protect the population and vital infrastructure. Civil defense can contribute to deterrence by denying an enemy any confidence that he could prevent a concerted national response to attack. (U)

The civil defense program will support all-hazard integrated emergency management at State and local levels. In so doing, the civil defense program will: (U)

1. Recognize and respect the primary responsibility of State and local governments to provide for the safety and well being of their citizens in emergencies other than national security emergencies.
2. Provide a focal point within the Federal government to work with State and local governments on integrated multi-hazard response planning and operations to deal with the consequences of catastrophic emergencies. (U)
3. Continue to implement a policy of dual use of civil defense resources through the development and use of capabilities at Federal, State and local levels to perform emergency functions to respond to emergencies of all kinds including attack. (U)
4. Focus on the development,jointly with State and local governments, of the required capabilities common to all catastrophic emergencies and those unique to attack emergencies, thus ensuring that the use of civil defense funds is consistent with, contributes to, and does not detract from attack preparedness. (U)
5. Provide for the development of a civil defense infrastructure capable of expansion in a national security emergency involving the threat of all forms of attack on the United States which provide
   advanced warning. (U) 
6. Utilize to the maximum extent the existing capabilities, facilities and resources of all appropriate departments and agencies of the Federal Government, in accordance with Executive Order 122656 and, with their consent, those of the States and political subdivisions thereof, and of private sector organizations and agencies. (U)

Disaster-specific programs such as hurricane or flood relief programs which may be incorporated into the civil defense program and which are currently funded within  domestic discretionary accounts will continue to be budgeted in this manner. In addition, any equipment or programs not needed for the consequence management of national security emergencies will be funded within the domestic discretionary accounts.

IMPLEMENTATION

The program under the direction of the Federal Emergency Management Agency with the support of heads of the Federal Departments and agencies, and under the general policy guidance of the National Security Council, will include: (U)

1. Population protection capabilities, with the Federal Government providing guidance and assistance to enable State and local governments to effectively support the population in all catastrophic emergencies. (U)
2. State and local government crisis management capabilities to effectively support the population in all catastrophic emergencies. (U)
3. Information to promote a clear understanding by the public of the civil defense program, all threats which may affect their localities and actions they should take to minimize their effects. (U)
4. Information to assist U.S. business and industry in taking measures to protect their work forces and physical assets in all catastrophic emergencies and encouragement of the private sector to make maximum use of private sector capabilities. (U)
5. Voluntary participation by citizens and institutions in community civil defense activities and emphasis on citizen protective actions. (U)
6. Plans for sustaining survivors, for restoration of critical life support capabilities, and to establish a basis for recovery. (U)
7. Definition of and an assessment of the base capability necessary to respond to emergencies that do not provide warning, and the development of those base capabilities which are common to all catastrophic emergencies and unique to attack. (U)
8. Plans for a civil defense surge from the base capability to the total required capability in a national security crisis involving the threat of attack. These plans should assume advanced warning, adequate time to conduct the surge, and the required base capability form which to surge. Total required capability is that operational capability necessary to protect the population and vital infrastructure through preparedness measures common to all catastrophic emergencies and unique to attack emergencies. (U)

The Department of Defense will support civil authorities in civil defense, to include facilitating the use of the National Guard in each state for response in both peacetime disasters and national security emergencies. Subject to the direction of the President and the Secretary of Defense, readiness of the armed forces for military contingencies will have precedence and civil authorities should not rely exclusively on military support. Federal military resources will be employed in civil defense missions only if State and Federal civil resources are not sufficient. Nothing in this directive alters or otherwise
affects the chain of command for the armed forces established by the Constitution and laws of the United States. (U)

Nothing in this directive provides for any new Federal responsibilities which are now the responsibility of State and local governments. (U)

RESCISSION
National Security Decision Directive 259, dated February 4, 1987, is rescinded. (U)

/signed/ George H.W. Bush

Integration of Federal Response Plans

Republishing here a VLG technical note that is set forth below:

[This technical note is not copyrighted and may be used for any purpose]

VLG Technical Note
Updated January 1, 2010
VLGTN-10-01-02

[Editor’s Note-The technical note series is designed to stimulate thinking about subjects for academic research and improvements in doctrine otherwise impacting current policy discussions and issue analysis. The principal intent is to highlight subjects for further study.]

SUBJECT FOR FURTHER STUDY:
Whether further militarization of domestic civil crisis management jeopardizes the governmental system and heritage of the United States?

BACKGROUND:
Astoundingly, in the last years of the administration of President Ronald Reagan a flag rank officer serving as National Security Advisor adopted strengthening of civil agency capability and plans as opposed to preemptively trying to take over domestic civil response. Name of that General—Colin Powell.

DISCUSSION:
1988 National Security Emergency Plan
CIVIL Domestic Management and Response—
On the Road to All-Hazards Plans and Preparedness

One of the interesting areas for research is the development and background of the National Response Framework [NRF] issued in final January 2008 [now again under active revision]. The NRF also includes a biological incident annex published September 2008. The NRF supersedes the National Response Plan [NRP] that was mandated by the Homeland Security Strategy of 2002, the Homeland Security Act of 2002, the Reorganization Plan submitted on November 25, 2002, and HSPD-5 [February 28, 2003] and was thus a major Goal for DHS to accomplish. With its constant revisions and failure to integrate other strategies and plans it can now be concluded that that Goal was NOT met. Somewhat ironically, or perhaps even with elements of tragedy as experienced by NOLA, just as the Federal Response Plans issuance in May 1992 was soon calibrated by the reality of events of Hurricane Andrew in August 1992, the National Response Plan [widely reported to have been effective December 2004] made effective officially in April 2005 was shortly to be calibrated by the events of Hurricane Katrina. Homeland Security Presidential Directives HSPD 5 and 8 [issued fall 2003] reinforced the GOAL but again did not achieve the Goal of implementing these mandates.

Implementation would of course have had to include extensive training and exercising in order for the NRP to achieve its purposes. FEMA has now contracted out a project to develop its “doctrines” with respect to its disaster operations. That efforts deliverables are due shortly. That effort is dominated by retired military officers. No known participation of STATE and LOCAL officials is part of the process.

In reality the foundation for an all-hazard civil response plan with military support had been in evolution since the administration of President Ronald Reagan. One key element of the evolution of the all-hazards planning concept had been FEMA’s National Security staff insisting on providing a separate National Security Emergency Plan throughout the early Reagan Administration. This backgrounder explains why that effort was eventually directed to incorporating into the Federal Response Plan issued in May 1992 all civil response elements for National Security Emergencies. The 1992 FRP contains a single paragraph concerning its application to National Security Emergencies. That term first appeared in EO 12472 and was defined in EO 12656 both of which are still extant. As always given the size of DOD resources the challenge to the civil agencies has been to effectively incorporate DOD support for civil agency programs, functions, and activities and not be overwhelmed or preempted by DOD at the same time.

The concept of a National Security Emergency Plan for large scale domestic catastrophic incidents/events was developed by National Security Council staff as early as 1983 and was derivative of early planning efforts mandated by the Federal Civil Defense Act of 1950, Public Law 920 of the 81st Congress (hereinafter the “ FCDA”). That statute, which somewhat crudely tried to reconcile defense of the population from active warfare, both nuclear and conventional, mandated not only plans but a civil defense system that was to be implemented by those plans. Because the so-called Plan D and Plan Other than D was the end product, one to deal with nuclear warfare conducted at a strategic level and one to deal with conventional warfare, both classified and seldom shared with the State and Local governments, it was seen that some largely unclassified effort was needed to leverage state and local assets. President Eisenhower, when the Deputy Army Chief of Staff for Plans and in charge of war planning, had been attributed with saying “Planning is everything but the plan is nothing.” A relatively recent comprehensive discussion of civil emergency planning appears in “Facing the Unexpected-Disaster Preparedness and Response in the United States,” Kathleen J. Tierney, Michael L. Lindell, and Ronald W. Perry, Joseph Henry Press, Washington, D.C. (2001). It is certain that planning, and the coordination, collaboration, and cooperation needed to produce any plan has been identified as a key element of preparedness. It is significant that planning alone is not equivalent to preparedness, which also includes the verification of capability of the elements of logistics, personnel, equipment, training and exercises.

A very brief background discussion of federal planning efforts for both mobilization of resources and response to domestic disasters and emergencies as well as preparedness for may be helpful. A draft chart of federal civil response efforts is available from the author of this technical bulletin upon request.

On April 17, 1952, President Harry S. Truman in E.O. 10346 mandated that each federal department or agency should cooperate with the Federal Civil Defense Administration to prepare plans for providing its personnel, materials, facilities, and services during the existence of a Civil Defense Emergency (a term used in the FCDA). It should be noted that authority for declaration of a Civil Defense Emergency lapsed in 1974. The plans were to be designed to include continuity of department and agency operations and coordination of such arrangements with other national, state, and local civil defense plans. No consolidated emergency response plan appeared until 1958, the initial National Civil Defense Plan (really a preparedness plan and not a response plan), and then with final issuance of a document signed by President Lyndon B. Johnson in 1964 under the auspices of the Office of Emergency Preparedness (originally, the Office of Emergency Management in WWII, and then the Office of Emergency Planning (1958-61), and the Office of Emergency Preparedness (1962-73). The 1964 OEP Plan [reviewed and signed by President Lyndon B. Johnson] assigned responsibilities to all the Federal departments and agencies without indicating what budget or resources were to be applied (a defect that still plagues the National Response Plan today.)

It should be noted that so-called Continuity of Government (COG) and resource mobilization plans were segregated by both funding and legal authority for their conduct as early as 1953. [No specific law or Executive Order mandates these functions although Section 404 of the National Security Act of 1947, as amended comes close and in addition the implications of such planning underlie the Defense Production Act of 1950, as amended. That statute was recently extended for five years by the enactment of Public Law 111-67. For a discussion of civil and military COG planning see Paul Bracken, Command and Control (Yale University Press, 1983). It should be noted that the bifurcated Constitutional role of the President, both as Commander-In-Chief and Chief Executive, have different requirements and nuances for development of COG systems and their implementation and operations. Additional civil government mobilization, including standby legislation (primarily the titles of the FCDA that lapsed in 1953 and the Defense Production Act of 1950) were incorporated in classified “Plan D” and “Other than D” to address nuclear attack related emergencies and conventional warfare. These plans were never signed off by the President or officially approved by the Attorney General or subordinate units of the Department of Justice and formally reviewed for legality. Telecommunications planning was also separately addressed as early as 1962. For a list of planning assignments as of 1962 see E.O. 11051 of September 27, 1962.

Resource mobilization planning for a coordinated federal response to any national crisis was energized when on December 17, 1981, the President through the Assistant to the President for National Security Affairs signed a memorandum establishing the Emergency Preparedness Mobilization Board (hereinafter EMPB). This action was taken in response to a Memorandum by Edwin Meese, III, then Counselor to the President and later Attorney General to Frank C. Carlucci, Secretary of Defense and Louis O. Guiffrida, Director of FEMA, dated May 26, 1981.

Two National Security Decisions (NSDD 30 “Managing Terrorist Incidents” April 10, 1982 and NSDD 47 “Emergency Mobilization Preparedness” July 22, 1982) were soon issued that established several fundamental principles. All NSDD’s that are declassified in whole or in part can be found at the following URL: http://www.fas.org/irp/offdocs/nsdd/index.html

First in the event of threatened or actual terrorist attacks lead agencies were designated by the Executive Order as responsible. Principally State Department was designated for international terrorism incidents/events, Justice for domestic terrorism, and FEMA for response to consequences of actual domestic/events. Second, the principal was established that even natural disasters could impact national security, and a single system was required for the national security community and its assets to respond. President Carter’s National Security Advisor when flying over the eruption of Mt. St. Helens with the President observed that a major earthquake impacting Silicon Valley could have vast national security impacts. President Carter order the NSC Advisor to prepare both a classified and unclassified analysis for him. The unclassified version was issued by FEMA as a FEMA document. Both were completed before January 1981 when Ronald Reagan became President. NSDD 47 in particular identified a large catastrophic earthquake (the placement of the principal research, development, and manufacturing capability of the nation for the technology sector in California was the specific catalyst) as potentially damaging national security. It therefore concluded that a single response system was necessary and empowered the Emergency Preparedness Mobilization Board [EMPB] to design such as system. By 1985, in NSDD 188 the EMPB was disestablished having completed a plan of action. It should be noted that the Los Angeles Olympics had energized the Department of Justice in the assigned lead role in domestic terrorism and DoJ was increasingly anxious to assert that role. The DoJ had created a concept called “Law Enforcement Emergencies” that was incorporated into the Omnibus Crime Control Act of 1984 and is presently implanted in 28 CFR Part 65. Unfortunately, DoJ has not sought funding for implementation of that concept in annual appropriations requests.

In a memorandum dated September 15, 1987, signed by Frank C. Carlucci, Secretary of Defense, on behalf of the National Security Council, the President directed implementation of a national security emergency plan to replace obsolete plans and update standby documents, specifically draft Executive Orders, for various emergencies.

Because of differing coordination systems and mandates, on January 19, 1988, with Presidential approval, the Domestic Policy Council (after 15 months of effort) adopted a National System for Emergency Coordination (NSEC) to provide timely, effective, and coordinated assistance to States and local governments in extreme catastrophic technological, natural or other domestic disasters of national significance.

The NSEC created functional groups in (1) communications; (2) economic affairs; (3) energy; (4) human services; (5) transportation; and other functions as needed. Confusingly, after establishing functional assignments, the system then adopted a lead

Agency approach as follows:

(1) Natural Disasters-FEMA;
(2) Health or Medical-DHHS;
(3) Terrorism (less Airborne Hijacking)-DOJ;
(4) Accident at licensed nuclear power plant-NRC;
(5) Nuclear Weapon, reactor facility accident-DOD or DOE (“owner”);
(6) Environmental-EPA;
(7) Transportation-DOT;
(8) Economic disruption-Treasury;
(9) Telecommunications-OSTP/NCS.

A system of appointment of a FCO (Federal Coordinating Officer) was also adopted with the FCO to be from the lead agency.

On April 27, 1988, the Assistant to the President for National Security Affairs, Colin l. Powell, assigned seven national security priorities to the civil agencies with the third highest priority the preparation of a National Security Emergency Plan to encompass both mobilization and response. In a memorandum to the President on June 27, 1988, the Secretary of Defense committed to full DOD support to the civil emergency planning process, including mobilization, continuity of government (the role of the President as Chief Executive (civil authority) as juxtaposed with that of Commander-In-Chief (military), and when assigned DOD support to civil agency response planning.

On June 27, 1988, the same day that the Secretary of Defense was pledging renewed cooperation in NSEP (National Security Emergency Preparedness Planning) to the President, the Assistant to the President for National Security Affairs, Colin L. Powell, directed that an analogous system for responding to large-scale emergencies that could adversely affect national security be created. The Powell memorandum directed that a National Security Emergency Plan be created with a functionally oriented structure as a companion approach to the Plan for a Federal Response to a Catastrophic Earthquake (adopted in 1987 and predecessor to the Federal Response Plan) that had been mandated in the Earthquake Hazards Reduction Act of 1977.

Until the promulgation of E.O. 12656, “Assignment of Emergency Preparedness Responsibilities” on November 18, 1988, [superseding EO 11490 (1969) efforts to create a National Security Emergency Plan continued. At that point the assignment of lead and support functions to the departments and agencies in the Order led to substantial fragmentation of various planning efforts and the hope of unified NSEP died. Interestingly, when offered the lead role on “terrorism” in EO 12656, DoJ insisted instead on being in a support role to other agencies.

It should also be noted that on November 23, 1988, DOD was authorized by statute to act on behalf of the President for a period of up to 10 days when a disaster is imminent (prior to declaration) in the Robert T. Stafford Disaster Relief and Emergency Assistance Act, Pub.L.100-707. Of some interest is the DOD but not FEMA was mentioned in the original enactment of the Stafford Act [it should be noted that the Stafford Act modified and supplemented the Disaster Relief Act of 1974, with both codified at 42 U.S.C. Sections 5121 et seq.) Perhaps of some interest is that multiple efforts to amend the Stafford Act to specifically cover acts of terrorism have not succeeded.

It soon became evident that both for natural disasters and national security emergency events, a functional approach indicated substantial overlap in planning and plans. A concept implied in NSDD 47 in 1982. Because of progress in turning the Earthquake Plan into a Natural Hazards Response Plan (eventually the Federal Response Plan) the concept of a separate NSEP was dropped. (Separate COG and telecommunications plans remain, while Mobilization (resource preparedness) plans for the civil agencies with the exception of Defense Production Act authorities have ended (both Clinton and Bush administrations had no interest in mobilization of national resources for national needs. What is important to note is that NO governor ever considers that his/her needs at the STATE level will NOT be provided by the federal government when State and Local resources are exhausted or ineffective. For an example indicating the accuracy of this statement you can review Executive Order 12657 issued November 18. 1988. Executive Orders for each of the last 4 President’s may be found at the website of the National Archives and Records Administration, specifically www.NARA.gov

CONCLUSION: To make sure that at least one basic principle of federal organization for emergency response is made clear to readers of this paper, an overarching principle of the federal executive branch organizations, including DOD and the Armed Forces, is that with very few exceptions each of these organizations is primary lead responsible for incidents/events on their own facilities even though such incidents and events may impact the civilian population of the United States in a catastrophic fashion. The NRF and its predecessors have a patent defect in the opinion of the author of this technical bulletin in that it does not make clear that it has NO application to these federal facilities and bases. Thus, the thrust of civil emergency planning to date has been exclusive of issues arising from the immensely difficult issue of the disaster potential of federal facilities.

History of FEMA Directorates

VLG Technical Bulletin 2010-4-8

KEY PROGRAMMATIC DIRECTORATES IN THE FEDERAL EMERGENCY MANAGEMENT AGENCY 1979-2003 (Ranked by Longevity)

Editor’s Note—[FEMA as a named statutory organization did not exist between March 1, 2003 and March 31, 2007 but the term Federal Emergency Management Agency was administratively authorized for use from August 2003 until October 2006 when FEMA was split into two Directorates under the so-called 2SR reorganization, a Preparedness Directorate led by an Under Secretary and a Federal Emergency Management Directorate led by an Under Secretary. Thus, Directorate status for the purpose of this list means an organizational unit headed by an ES 3-5 PAS confirmed by Senate, even though two Directorates never had a PAS confirmed to lead them. The position of the Director of FEMA [ES-II PAS] had been created by Reorganization Act No. 3 of 1978. The position of Administrator of FEMA [ES-II PAS] was created by the Post-Katrina Emergency Management Reform Act of 2006, Title VI of the DHS appropriation act [Public Law 109-295] entitled National Emergency Management with PKEMA as the popular title.

1. Federal Insurance Administration- 1979-2003 [The position of Federal Insurance Administrator was confirmed by the Senate Banking Committee]
This position administered programs, functions, and activities authorized by 42 U.S.C. Sections 4001 et seq. The position of Federal Insurance Administrator was added by the Urban Property Protection Act of 1968. The position was abolished by the Homeland Security Act of 2002, effective March 1. 2003.

2. United States Fire Administration- 1984-2008*
[The position of Fire Administrator is subject to confirmation by the Senate Science Committee] This position administers programs, functions, and activities authorized by the Fire Prevention and Control Act of 1974, as amended, 15 U.S.C. 2201 et seq.

* * Between March 1, 2003 and December 2006 when the applicable statute was reauthorized and enacted there was no US Fire Administrator. Now by PKEMA since March 31, 2007 there is an Assistant Administrator for Fire position confirmed by SENATE.

* Although abolished by the Homeland Security Act of 2002 the position of United States Fire Administrator was recreated by Public law 108-169 on December 6, 2003.

3. National Preparedness Directorate- 1981-1993
[This Associate Director, FEMA, position was subject to confirmation by the Senate Armed Services Committee] This position administered programs, functions, and activities authorized by E.O. 10480, E.O. 11490, E.O. 12656, E.O. 12919, and Section 404 of the National Security Act of 1947, as amended.

4. State and Local Preparedness and Support Directorate-1981-1993[Associate Director confirmed by the Senate Public Works Committee] This position primarily administered programs authorized by the Disaster Relief Act of 1974 (Pub. L. 93-288), the Federal Civil Defense Act of 1950 (Pub. L. 81-920), and the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Pub. L. 100-707).

5. Response and Recovery Directorate 1993-2003 [Associate Director confirmed by the Senate Environment and Public Works Committee] This position administered the authorities codified at 42 U.S.C. Sections 5121 et. Seq.

6. Preparedness, Training, Exercises Directorate- 1993-2001 [Associate Director confirmed by the Senate Environment and Public Works Committee] This position primarily administered all training authority under Federal Civil Defense Act and the Robert T. Stafford Disaster Relief and Emergency Assistance Act, and those authorities together with the preparedness and exercise authorities under E.O. 12148, E.O. 12657, E.O. 12656 and other authority including the Radiological Preparedness Program and the Chemical Stockpile Emergency Preparedness Program.

7. Mitigation Directorate- 1993-2001 [Associate Director confirmed by the Senate Environment and Public Works Committee] This position administered provisions of the Earthquake Hazard Reduction Act of 1977 and the Dam Safety Program as well as other mitigation authorities.

8. Information Technology Services Directorate- 1994-2003 [Never headed by a PAS] This position administered various IT authorities including FEMA’s implementation of E.O. 12472 and the CIO authorities.

9. Emergency Operations Directorate-1981-1986 [Never headed by a PAS] This position administered certain classified and unclassified programs assigned to FEMA by Presidential delegation. It included authority under E.O. 12472 and the National Security Act of 1947, as amended.

10. Disaster Response and Recovery Directorate-1979-1981 [Associate Director confirmed by Senate Environment and Public Works Committee] This position administered provisions of the Disaster Relief Act of 1974 (Pub.L. 93-288).

11. Plans and Preparedness Directorate- 1979-1981 [Associate Director confirmed by Senate Armed Services Committee] This position administered provisions of the Federal Civil Defense Act of 1950 (Pub.L. 81-920) and certain authorities under EO’s 10480, 11490 and 12148.

12. Mitigation and Research Directorate- 1979-1981[Confirmed by
Senate Environment and Public Works Committee] This position administered provisions of the National Earthquake Reduction Act of 1977, and certain other authorities under delegation from the President.

13. United States Fire Administration- 1979-81 [Confirmed by Senate Science Committee] This position administered provisions of the Fire Prevention and Control Act of 1974, as amended. [See entry #2 previously].

14. Training and Fire Directorate- 1981-83 [Confirmed by Senate Science Committee] This position administered all training and fire authorities under the Federal Civil Defense Act of 1950, as amended and the Fire Prevention and Control Act of 1974, as amended.

15. Insurance and Mitigation Directorate- 2001-2003 [Confirmed by Senate Banking Committee] This position administered provisions of the National Flood Insurance Program (42 U.S.C. 4001 et. Seq.) and the National Earthquake Hazards Reduction Act of 1977, and the Dam Safety program under both statute and Executive Order.

16. Emergency Preparedness and Response Directorate [EP&R] (DHS) March 1, 2003-March 31, 2007 [Administratively renamed FEMA in August 2003 and under Chertoff 2SR split during October 2006, into Federal Emergency Directorate and Preparedness Directorate]. The latter Directorate was headed by an Under Secretary Confirmed by Senate Homeland Security and Governmental Affairs Committee***] It is unclear what provisions of law or Executive order continued to administered by this Directorate because of a failure to comply with published delegation requirements of the Federal Register Act of 1934 and the Administrative Procedure Act of 1947 during its existence. It also should be noted that effective March 31, 2007 when the Preparedness Directorate was recombined with the Federal Emergency Management Directorate to become the statutorily recreated Federal Emergency Management Directorate under PKEMA [Post-Katrina Emergency Management Reform Act of 2006—Title VI of the DHS FY 2007 Appropriations Act] certain functions of the Preparedness Directorate did not return to FEMA and became part of the newly created National Protection & Programs Directorate.

17. Federal Emergency Management Directorate-October 2006-March 31, 2007 [Confirmed by Senate Homeland Security and Governmental Affairs Committee] It is unclear what provisions of law or Executive order continued to be administered by this Directorate after October 2006 because of failure to comply with published delegation requirements of the Federal Register Act of 1934 and the Administrative Procedure Act of 1947 during it existence prior to re-establishment of a statutory entity known as FEMA by the Post-Katrina Emergency Management Reform Act of 2006.

*** Michael Brown was confirmed as Deputy Director of FEMA by the US Senate. He was later named Acting Director of FEMA until FEMA was abolished by the Homeland Security Act of 2002 made effective March 1, 2003. He was then named to the newly created position of Under Secretary Emergency Preparedness and Response in an Acting capacity. He was never confirmed by the U.S. Senate while in DHS in any position.

Attached as an appendix to this document is a list of authorities administered by FEMA on March 1, 2003 when it became part of DHS. Those marked with a double **** were specifically deleted from FEMA’s authorities by redelegation to the Secretary DHS and it is still (as of April 7, 2010 presently unknown as to whether official redelegation below the Secretary DHS to the Administrator FEMA has ever occurred. This continues to be a violation of the Federal Register Act and the Administrative Procedure Act. It should also be noted that although a statutory FEMA organization was created by the Post-Katrina Emergency Management Reform Act of 2006, that statute did not list programs, functions, activities or legal authorities of the re-established FEMA. Thus, from March 1, 2003 to March 30, 2007 no organization known as FEMA legally existed in the Executive Branch of the United States government either as an independent agency or as a sub-unit of the Department of Homeland Security.

FEDERAL EMERGENCY MANAGEMENT AGENCY
INFORMAL CITATIONS FOR LEGAL AUTHORITIES

Statutes

Reorganization Plan No. 3 of 1978, 3 CFR 1978 Comp., p. 329, 5 U.S.C. App. 1, note. (Authority for FEMA) ****

Atomic Energy Act of 1954, as amended, 42 U.S.C. §2011 et seq. (Authority for Radiological Preparedness Program, See 44 CFR Parts 350-354) ****

Communications Act of 1934, as amended, 47 U.S.C. §151 et seq. (Authority for interoperable emergency communication systems-Federal, State, local, and private) See 47 CFR Parts 64 & 201) ****

Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), as further amended by Superfund Amendments and Reauthorization Act of 1986 (SARA), 42 U.S.C. §9615 et seq. (See 40 CFR Part 300) ****

Defense Production Act of 1950, as amended, 50 U.S.C. App. §2061, et seq. (See 15 CFR Part 700 and 44 CFR Parts 320--336) ****

Department of Defense Authorization Act for 1986, § 1412 (Public Law 99-145; 99 Stat.747), as amended by Public Law 101-510, both codified as 50 U.S.C. §1521 (Authority for CSEPP) ****

Department of Defense Authorization Act for 1997, Defense Against Weapons of Mass Destruction Act of 1996, Title XIV of Public Law 104-201. ****

Earthquake Hazards Reduction Act of 1977, as amended most recently by Public Law 105-47 (October 1, 1997), 42 U.S.C. §7701 et seq. (See 44 CFR Parts 361 & 362) ****

Emergency Planning and Community Right to Know Act of 1986, as amended, 42 U.S.C. §11001 et seq. (Authority for hazard materials planning and disclosure) ****

Federal Fire Prevention and Control Act of 1974, as further amended by the Hotel and Motel Fire Safety Act of 1990 (Public Law 101-391) and Arson Prevention Act of 1994 (Public Law 103-254) and Firefighters‘ Safety Study Act (Public Law 101-446) all codified at 15 U.S.C. §2201 et seq. (See 44 CFR Parts 150-152) ****

Great Lakes Planning Assistance Act of 1988, Title II of Public Law 100-707, 33 U.S.C. §426p.note. (See 44 CFR Part 207) ****

Hazardous Materials Transportation Act, as further amended by Hazardous Materials Transportation Uniform Safety Act of 1990, both codified at 49 U.S.C. §5101 et seq. (Hazardous materials planning and training) ****

Multihazard Research, Planning, and Mitigation Act, Public Law 96-472, 42 U.S.C. §5195 note. ****
National Dam Safety Program Act, 33 U.S.C. §467 et seq. as amended by Public Law 107-310, Dam Safety and Security Act of 2002

National Security Act of 1947, as amended, 50 U.S.C. §§ 404, 405 & 411 ****

Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended, 42 U.S.C. §5121 et seq. (See 44 CFR Parts 206 & 300) ****

Stewart B. McKinney Homeless Assistance Act, as amended, 42 U.S.C. §11311 et seq. (Emergency food and shelter program) ****

National Flood Insurance Act of 1968, as further amended by Flood Disaster Protection Act of 1973, and National Flood Insurance Reform Act of 1994, all codified at 42 U.S.C. §4001 et seq. (See 44 CFR Parts 59-79) ****

Executive Orders

Executive Order 11988 of May 24, 1977, as amended, Floodplain Management, 3 CFR, 1977 Comp., p. 117, 42 U.S.C. §4321 note p.191. (See 44 CFR Part 9) ****

Executive Order 12127 of March 31, 1979, Federal Emergency Management Agency,
3CFR, 1979 Comp., p. 376. (Implements Reorg. Plan No. 3 of 1978) Like E.O. 12148 this order was repealed implicitly by the Homeland Security Act of 2002.

Executive Order 12148 of July 20, 1979, as amended, Federal emergency management, 3 CFR, 1979 Comp., p. 412. (Implements Reorg. Plan No. 3 of 1978) [Implicitly repealed by Homeland Security Act of 2002

Executive Order 12241 of September 29, 1980, National Contingency Plan [Radiological Emergencies], 3 CFR, 1980 Comp., p. 282. (Note-Source of FRERP). ****

Executive Order 12472 of April 3, 1984, Assignment of national security and emergency preparedness telecommunications functions, 3 CFR, 1984 Comp., p.193. (See 47 CFR Part 201) Editor’s note—This authority is not delegated to FEMA as of March 1, 2002. See Homeland Security Act of 2002 and discussion of NCS transfer to DHS. There is no question that the NCS [National Communications System] created by E.O. 12427 is now housed in the National Protection and Programs Director of DHS and NOT part of FEMA.

Executive Order 12580 of January 23, 1987, as amended, Superfund Implementation, 3 CFR, 1987 Comp., p. 193 (Note: Amended by E.O. 12777 of October 18, 1991, and further amended by E.O. 13016 of August 28, 1996). (See 40 CFR Part 300). ****

Executive Order 12656 of November 18, 1988, Assignment of Emergency Preparedness Responsibilities, 3 CFR, 1988 Comp., p. 585. (See 47 CFR Part 201) No delegation currently exists of this authority below the Secretary DHS. The amendment of this order has eliminated all FEMA direct delegations. Unknown as to whether any formal re-delegations under the order have been made to the Administrator FEMA.

Executive Order 12657 of November 18, 1988, Federal Emergency Management Agency Assistance in Emergency Preparedness Planning at Commercial Nuclear Power Plants, 3 CFR, 1988 Comp., p. 611. (See 44 CFR Part 352) **** [Note this order has not been revised since the formation of DHS and incorporation of FEMA. It relies in part on a repealed statute—Public Law 920 of the 81st Congress which created the federal civil defense program. That statute, as amended was repealed in 1994 by Public Law 103-337!

Executive Order 12673 of March 23, 1989, Delegation of Disaster Relief and Emergency Assistance Functions, 3 CFR, 1989 Comp., p. 309. (See 44 CFR Part 206) **** [This EO is void by operation of law as is EO 12127 and EO 12148]

Executive Order 12699 of January 5, 1990, Seismic Safety of Federal and Federally Assisted or Regulated New Building Construction, 3 CFR, 1990 Comp., p. 269. ****
[Not amended since DHS created]

Executive Order 12919 of June 3, 1994, National Defense Industrial Resources Preparedness, 3 CFR, 1994 Comp., p. 901. (See 15 CFR Part 700, 44 CFR Parts 321-336) ****

Executive Order 12941 of December 1, 1994, Seismic Safety of Existing Federally Owned or Leased Building, 3 CFR, 1994 Comp. , p. 955.**** [Not amended since formation of DHS]

Conclusion:
The Federal Emergency Management Agency (FEMA) existed as an Independent Agency (created by Reorganization Plan No. 3 of 1978) with its Director reporting directly to the President from April 1, 1979 to March 1, 2003, at which time it was incorporated into the Department of Homeland Security created by Public Law 107-296, November 25, 2002.

There was no statutory organization chart for FEMA throughout its existence as an independent agency. The Directors of FEMA had complete authority to create and abolish organizational units in FEMA. Utilizing this authority, the various Directors created or reorganized the programmatic Directorates as shown above. The most significant reorganizations occurred in (1) September 1981- when the programs, functions, and activities authorized by the Federal Civil Defense Act, 81st Congress Law 920 were moved from the Plans and Preparedness Directorate (disestablished) to the State and Local Programs Support Directorate (established); and (2) November 1993- when an independent Mitigation Directorate was established. The Federal Civil Defense Act was in force from 1950-1994 but significant authority lapsed in 1974. Of the components in predecessor agencies that became part of FEMA, the Federal Civil Defense Agency (DOD) was the largest component by FTE (900-1000). Language similar to portions of the Federal Civil Defense Act were incorporated into the Robert T. Stafford Disaster Relief and Emergency Assistance Act, Public Law 100-107 (November 1988) by Public Law 103-337 (November 1994).

Efforts to retain FEMA as an independent agency reporting to the President occurred both in Committee and the floor of the United States House of Representative but were defeated largely on a party-line vote. In the United States Senate efforts to do the same were defeated in Committee and the issue was never considered on the floor of the Senate. This was remedied in part by the creation of a “new” FEMA by PKEMA.

Profiles--The General Counsels--The Political GCs

Correction and supplement:
In September 1994 a new GC arrived directly from being a staffer in the White House Personnel Office. John Carey. He was to serve until leaving for a job with the former MBNA in Delaware and Wilmington his home town. He served until June 1997. Or perhaps slightly earlier in the spring. During his tenure he selected Michael B. Hirsch as a new SES Deputy General Counsel. Mike was a career civil servant and he became the first Deputy GC to be SES since the Departure of Don Young. When Don departed I negotiated for George Jett a deal with FEMA Personnel and others to trade Don's SES slot for grade 15's and they became the first non-supervisiory 15s in the Office. That said Mike had long and faithfully served FEMA and the disaster relief effort since joining FEMA on September 10th, 1979, coming from HUD as I did. Mike had come to HUD originally from the GAO! Over time he became the leading specialist on grant law and the Stafford Act in the office. He also had conducted flood litigation and other roles including being the Insurance and Mitigation Associate GC for an extended period. So Mike was well prepared to be the Deputy.

John Carey and Mike were a successful team and they accomplished one mission for the GC office that was crucially necessary. The establishment and operation of a DAE Attorney Field Cadre. This alleviated some of the constant stress on HQ GC ops which from the beginning was chronically understaffed and underfunded in particular after Chairman Boland ordered a line item cut in the OGC budget in FY84. The relatively newly and acquired with great difficulty Regional Counsels in the 5 largest regions of FEMA were terminated and their work loads reabsorbed in HQs.

John Carey left in December 1996, Mike became Acting GC in the following period and was followed in July 1997 by Ernest Abbott who had been involved in an Energy Law practice and was a Harvard Law School grad. Son of an academic, Ernie served until the Administration departed on January 20, 2001. His favorite FEMA program was the NFIP [National Flood Insurance Program] and devoted much time and attention to that program, the first GC to do so in FEMA's history.

In late January 2001, Michael Brown was sworn in as the new GC of FEMA. He was hired and recruited by Joseph Allbaugh who was to serve as FEMA Director until March 1, 2003, when DHS started operations. At some point in time, Michael Brown left the GC position and became the Senate Confirmed Deputy Director of FEMA and served in that position until becoming the Under Secretary for Emergency Preparednes and Response in the new Department of Homeland Security on March 1, 2003.

When Michael Brown left OGC to become Deputy Director of FEMA, Mark Wallace, who was also political and was part of the Florida recount)became Acting GC. When Mark Wallace left Jordan Fried was Acting GC for about 6 months before David Trissell appointment.

A senior staff attorney in OGC David Trissel became a career SES GC. Michael Hirsch earlier had departed OGC in late spring of 2001 to become an SES in the disaster programs of FEMA. No deputy GC served until Adrian Sevier became a career DEPUTY GC at the SES level in 2006. He still serves in that position. The newest GC is now Brad Kieserman, a career Coast Guard JAG officer and now a career SES in FEMA. His appointment succeeded David Trissel who is now on a NATO assignment in Brussels. David was 14 years total in various positons in OGC and OCC of FEMA.
Some may ask how the different individuals, career and non-career came to run OGC in FEMA and then the Office of the Chief Counsel, FEMA, reporting to the GC of DHS. I hope this series of blogs explains that line of succession to some degree.

However, in the interest of full disclosure I was interviewed by a White House official not to be named after a fiasco over the position of FEMA on the license application and off-site safety of the Seabrook Nuclear Power station. I was a fact witness in that proceeding and my testimony in both deposition and before the Licensing Board, both conducted under oath are a matter of record. Despite being a fuzzy headed liberal I seemed to get the most WH calls when the Republicans were in power. I was asked directly the question and told my answer was very important by the WH individual who interviewed me--the question being "should the GC of FEMA be a political appointee"? Here is the answer I gave almost verbatim to the extent I remember it.

"First I have served under many political officials some directly and indirectly and some were wonderful appointees. The best I ever served under was Carla Hills when Secretary of HUD in the Ford Administration. My test for the political appointees (and perhaps even the civil servants) do they understand they have crossed the line from politics and now serve in an essentially nonpartisan position. Their service is to the American people, not to party loyalty or even necessarily the Administration. They should be loyal to their bosses but more important they should always give their best legal position even while explaining there may be a range of options.

Because I had seen career SES GC's rolled by politicals, despite their excellent lawyer and even loyalty to their bosses, they had been dismissed from key discussion in which they should have been present because a lawyer was needed to help inform the decision process. I recommended to the WH on that basis that a non-career GC for FEMA would give the Office more clout, minimize errors in decision makeing and also serve as a liaison for the WH counsel's office into the agency. Several times Career SES GC's because of reluctance to call the WH Counsel had left the agency hanging in a perilous way. Part of this was probably personality and part was experience. None-the-less for an agency life FEMA which is in direct support of WH civil crisis management and direct response and recovery this is a very necessary ingredient of the GC job." Note however I have now been retired almost 11 years and I have no understanding of how the Chief Counsel FEMA relates to the GC DHS. Perhaps the fact that the last two Chief Counsels of FEMA are career is indicative of a different assessment by both Republicans and Democrats in and out of office as to FEMA's importance. None-the-less to me it is an indicator that FEMA has less clout even as the new FEMA under PKEMA 2006!

I suspect however that the FEMA lawyering jobs are still as difficult and controversial and laden with policy as they were in my 20 years. So my hopes and prayers go out to Brad and Adrian to persevere in what is a complex and difficult piece of lawyering.

Is FEMA the Catch-All EM Agency

On December 13, 1985 the Attorney General of the United States wrote the most important letter about FEMA's role in EM and the Executive Branch and decided its fate as reflected in the creation of the Department of Homeland Security 16 years later. The letter can be found at the following URL:
http://www.fas.org/irp/agency/dhs/fema/index.html

The letter committed the Reagan Administration and all later Administrations to ensuring that FEMA's collaborative and cooperative portfolio largely through funding of mission assignments to other federal agencies and grants to the States would have a secondary role in EM and in reality be subject to the whims of mother nature and catastrophic human caused or exacerbated events but be without the operational and logistics and legal authority or adequate staff to deal with those events and in particular when of a catastrophic nature. Thus, the performances in Hurricane Andrew (1992) and Katrina (2005) were foreordained because of the lack of foresight and petty bureacratic jealousies of the Department of Justice and its various Attorney Generals. Other documentation for this rivalry exists but the letter referred to above is the best single example.

It would have been one thing to draw the lines bureaucratically and intellectually between LAW ENFORCEMENT and EM but in fact relying on the ability of all federal Executive Branch organizations to perform an expanded role in catastrophic situations but not fund, staff, or give them adequate legal authority or systems to do so is in fact tragic for the American people. Little though has been given to this extremely important issue as even today the Obama Administration has failed to develop a domestic civil crisis management system or chain of command and thus continues to put the Nation at risk of having a militarized response to domestic catastrophes.

The bottom line is that Executive Branch organizations do what they can do, are asked to do on a day to day basis, and what they are funded and authorized to do. We are now witnessing in the GOM the totally inadequate response offered under the National Contingency Plan [40 CFR Part 300] wherein with the US Coast Guard as Incident Commander it is now increasing faced with issues of on-shore impacts of the BP catastrophe including economic impacts and social and psychological impacts. The NCP is totally inadequate for these concerns and IMO has already demonstrated that fact as the Administration relies on a BP fund that will really only be fully implemented by the end of 2013 to fund damage and loss claims arising from their negligence.

Yet both the Administration and Congress are betting their will be a BP around and that organizations other than FEMA can gear up for this largest environmental disaster in world history other than drought and that reliance is totally appropriate and adquate. I respectfully disagree.

The missions, programs, functions, and activities of each Executive Branch component need critical analysis to determine how they can be surged, mobilized, staffed, funded, and equipped and trained if the December 13th Meese letter is controlling federal EM policy, which I believe it is still doing. Perhaps reading the letter might well be categorized as the US being lead and traveling over last three decades on a "Ship of Fools"!

The Department of Justice is still so enamored by its litigation skills and ability to recover funds from those negligent in this catastrophe that it refuses to recognize the readily apparent limitations of the US legal system in catastrophic events. Worse is that it prevents those who can help from helping.

Profiles-The General Counsels--Patricia M. Gormley

The very first non-career GC of FEMA had an interesting background. A Marine officer and female, Pat had transferred to the Navy and Naval JAG corps after completing law school at Catholic University in Washington DC. Widowed and remarried, Pat was the first female 4-striper in Navy JAG. That is slang for the exalted Naval rank of Captain the equivalent of full Colonel in the Army and Airforce. After retirement she became the GS-15 Counsel to the Inspector General at the Department of Veterans Affairs. She then was selected in August 1990 as both the first NON-CAREER GC for FEMA and obviously the first female GC. She came in after the appointment and confirmation of Wallace Stickney but had the misfortune to be preceded by three months by another political appointee Kathryn M. Newman, as Deputy GC and Acting GC of FEMA for three months. It is not that Ms. Newman did not have intelligence and competence but ususally it seems more successful when GC's can pick their own deputies. They both served until the end of the George H.W. Bush Administration in January 1993.

Without the complete failure of FEMA in its response efforts in Hurricane Andrew in August 1992, Ms. Gormley probably would be considered the strongest of the persons who ever served in the GC positions in FEMA. Reason, she was in fact a career lawyer but masked as a political one and very competent in dealing with the personalities she found in FEMA. Except me of course. Confession, I was strongly attracted Pat as a person and lawyer and would have jumped any hoops she asked me to but in the death throes of the Administration she issued a letter of reprimand to me that was ordered by those above her in FEMA ranks. Oddly like many other occasions neither my position in GC was threatened nor my pay. My grievance and appeal was denied but jurisdiction over the matter was accepted by the Officer of the Special Counsel which I did not pursue. Why? The main culprits had departed. What did I do? Decide against the agency as an alternated dispute resolution officer and the letter of reprimand was based on my faxing to outside counsel a document that read in its entirety "There are no FEMA documents relating to this matter." This was determined to be an unauthorized release of a legal opinion resulting in the letter of reprimand. The fact that I was in physical possession of a stack of documents generated within FEMA and its contractors relating to the matter was of course not the issue. Pat is if alive still living in Portland Maine and I am hoping someone sends her this so she can correct anything she believes in error. The reprimand was grateful upheld of course by Spence W. Perry returning as the Acting GC of FEMA from January 1993 to September 1993 or 94 when John Carey arrived from the White House personnel office.

Why do I have such respect for Pat? First she forced the denizens of the Office of the General Counsel to work hard and issued the longest written opinions in FEMA's history. That record if still available is unassailable. Hey to some extent it was a love-hate relationship with Pat and ME. But I still wish she had been in FEMA longer and hoping still for the best for she and her husband.

Remember that I was acting Associate GC for GENERAL LAW one year under Pat while she picked a permanent Associate. All in OGC and the Agency knew I hated the portfolio of the General Law division including, contracts, FOIA, personnel matters and ethics. And they also knew I did now want the job. But I had some fun. For example, I had a visit from the head of procurement in FEMA, Robert Boyer who had fled the Navy's civilian ranks to come to FEMA and after hiding out in FEMA for several years returned to the Navy. What was the visit about--6,000 unauthorized contracts issued by various people in FEMA. My solution lasted almost one year and was dissolved within a month by my permanent replacement, Robert Brock as Associate GC.

I also learned that most of the HUMAN RESOURCES OFFICE in FEMA lacked knowledge of their jobs so helped with that. But what I really liked about Pat is she let me fill my old job for the CY 1992 with a temporary attorney, a friend, DAVID A. ROSS, a brilliant Yale and Duke educated attorney who worked many different issues during his one year appointment.

[Correction to post offered by David Ross-LT GEN Richard Trefry, former Army IG, was selected by the board members as the head of the group though Gen Goodpaster was the senior military member] Pat and Dave's most important role during that time was legal support to FEMA's Security Practices Board of Review which consisted of among others retired GENERAL Andrew Goodpaster, Robert Kupperman, Lori Jean, Deputy Regional Director of FEMA Region IX, Ambassador Julia Taft, and Colonel Peter Dabrowski, Ret. Military Liaison to FEMA from DOD, and Lt. General Trefry, Ret. Its devastating analysis of misuse of personnel security in FEMA stands as a landmark for all federal Executive Branch components and has been discussed elsewhere on this blog.
See report at URL: http://www.fas.org/sgp/library/index.html  [Bottom of page]

So Pat and Dave you did you jobs well and are lasting in your contributions to federal service. Thanks so much for being fundamentally decent and brilliant people.

And then of course on January 20, 1993, Spence W. Perry returned as Acting GC of FEMA. Clearances all restored by the Acting Director William C. Tidball.

Profiles-The General Counsels--George W. Watson

Corrected version: George W. Watson came to FEMA as part of the OMB determination order from the General Counsel's staff of DCPA in July 1979. George was a very competent lawyer specializing in grant law at DCPA and trained at the University of Michigan Law School post WWII. He was part of the Navy's V-12 program which based on IQ testing of all naval recruits including draftees designated these MEN for college programs since the bulk of the colleges and University ranks had been decimated for the draft. The WWII planning was for a fifteen year war and college graduates needed to be restocked for the future officer corps. The top 2% by IQ were as a result sent to college by the Navy. George went to college in Tennessee. Because of the end of the war he never saw combat service but was commissioned. He has however kept his interest in sailing his entire wife. Oddly perhaps he met his future wife at the University of Michigan where she was that rarity in the 40's a woman in law school. She dropped out and eventually they had five children. I last saw George and his wife in Bethany Beach Delaware where they had retired in the late 1990's and after I had retired in 1999. I had both a call and e-mails from George since posting this item originally and will make more changes when time allows. He seems a very sprightly George Watson, young sounding at 84 and he has sent me some corrections to this blog. Unfortunately, George's dear wife Ruth died about 4 years ago. George tells me he is still sailing on the Chesapeake Bay from time to time.
George had briefly left the Office of the General Counsel (permanently I thought)after long service as the Associate General Counsel for General Law and then returned in 1985 as the head of the Program Law Division. Spence had no deputy general counsel but in reality George was the deputy throughout Sp[ence's tenure. When Spence had a breakdown in February 1988 George became his acting replacement as GC and I believe was actually named a career deputy General Counsel at his same GS-15 rank. Like me, George never joined the exalted ranks of the Career SES cadre. Althugh I understand he only was kept out of the SES by the George H.W. Bush Administration converting the GC job to a political appointee position. Still he served ably from February 1988 until 1991 as the Acting General Counsel of FEMA. Strangely because we were often rivals for the affection of the permanent GC's, and were of equivalent rank in the civil service for his entire career, George made me the de facto but not de jure Deputy GC during much of his tenure. I was allowed input but not necessarily final say on the entire gamut of OGC issues and policies. He did not always listen to me but he certainly allowed my input quite respectfully. Technically for the first year after he was made deputy I was the Acting Program Law Division Associate GC and was replaced permanently in that job by H.Joseph Flynn, a brilliant technician and writer who reflected ably the undergraduate and law degrees he held from Georgetown University. Joe served as the Program Associate until his retirement in the mid 90's.

Okay so why is an Acting General Counsel of importance. First he served as the Acting GC when the Robert T. Stafford Disaster Relief and Emergency Assistance Act was in its final throes of passage and enactment. That statute was enacted in November 1988. After the election it might be noted. George also presided over the drafting and issuance of EO 12656 which replaced old EO 11490 [1969] in November 1988. Additionally George cooperated with General Becton's efforts to define FEMA's mission and determine its real capability in response and recovery. Perhaps most significant, George presided over the very complex and difficult administrative cases of Shoreham and Seabrook and helped the agency escape destruction over those matters.

George and I often had significant disagreements but at least usually resolved them amicably. Perhaps the most important decision he issued involved the EXXON VALDEZ oil spill a position I have discussed in the January 2009 letter to the Editor of the Natural Hazards Observer.

George actually tried to resolve the issues of whether FEMA was a cooperate and collaborate agency or in fact the safety net when other agencies failed to do their statutory assignments in various crisis. The fact that that issue still permeates the roles of FEMA and DHS should not detract from the skill and effort George put into that issue.

Because George was at the end a re-employed annuitant his clout was somewhat limited during his final service as Acting GC. Nonetheless he served faithfully until Ms. Kerry Newman, a non-career GM-15, who became the permanent Deputy GC in June 1990, and was Acting GC until followed by the arrival of Patricia Gormley in August or September. Of the GC's of FEMA in the 80's George was by far the most intelligent and competent. The weird thing about being a government lawyer is that in reality there are no clients except the American people, and in an agency those you serve usually cannot fire you at the career level, nor can you fire them. George's tenure demonstrated clearly how a General Counsel statutory scheme is probably just as necessary as for CIO, CFO's and IGs.

Profiles-The General Counsels-Spence W. Perry

Spence W. Perry was no doubt the brightest lawyer in my time in FEMA.Also the laziest. His days largely consisted of reading non FEMA related materials including writing book reviews and studying various histories on various subjects. Like the saying about the German General Staff selection criteria however, you may well want the brightest but laziest soldiers to be your generals. Meaning of course that knowing what to delegate and why and doing so is in fact a great strength in that role. Whether that was the best role play for a woefully understaffed and underskilled OGC in FEMA is open to criticism.
Spence in his earliest teenage years had been a Congressional Page to a powerful Florida congressman. The Page Corps in Spence's years were a wild bunch. Very bright, well-connected and often partying in a manner over their heads or that of most human beings. His undergrad education was at Harvard. His law schooling at Duke. Spence also was a Viet Nam Navy Vet and in the Navy Jag Corps and continued that service in the reserves. Deputy GC Don Young was the Commander of the most prominent Navy Jag unit in the DC area and was in fact the OER reviewer for Spence. Also Bob Brock of OGC was in that unit. Eventually Don Young made the rank of Captain, and Spence and Bob made the rank of Commander. Spence did not make George Jett's first cut in becoming part of FEMA and was deliberately rejected for a position in the GC's office by George. The exact reasons will never be known but in fact there appears to have been some personal animus between the two from Spence's service to the Reorg project.
What George may have overlooked is the deep connections Spence had to the former OEP [Office of Emergency Preparedness] personnel who had once been in the Executive Offices of the White House. Spence had been an intern in that organization and at the behest of General George Lincoln, Ret. who headed OEP for a long time had worked with William Tidball as personal assistants to General Lincoln. They had been a team investigating bias in delivery of disaster relief in the Gulf of Mexico states after Hurricane Camille and a subject of Congressional inquiry. Robert Kupperman was also an intern at the same time and a person that led the Carter to Reagan Transition Team for FEMA and later after OEP an expert on terrorism. In fact the OEP former employees were sort of a fraternity in FEMA and in fact an excellent self protective society. They dreamed of course of their OEP days and a return to the WH.
Spence had relocated from the FPA GC's Office to the GC's Office of the Department of Energy where he was on the ropes for a number of reasons. That latter office was a mess during most of its early years and perhaps Spence's problems were just a reflection of that disarray as DOE had a rough start after its creation.
So how did Spence get to FEMA. The President's reorg project had considered and made no decision on the off-site safety role of FPA and NRC with respect to nuclear power plants. In my formal deposition under oath and in testimony before a NRC ASLB I testified that Three Mile Island (TMI) had been the beginning of FEMA's involvement in the REP (Radiological Preparedness Program). This testimony was wrong since I have since seen a formal report of the President's Reorg Project Team creating FEMA that formally considered this program for inclusion in the FEMA portfolio long before TMI! That core melt accident by the way was never a declared disaster although I was asked to front for HUD and FEMA with GAO defending use of the DRF to fund advance preparations should a disaster be declared and also to help with the spontaneous evacuation that occurred.
Spence was needed in FEMA because in 1980 and 1981 the REP program was consuming much of the agencies time, remember almost no natural disasters after Mt. ST. Helens in May 1980, but there was of course the Mariel Boatlift. George Jett came to me about staffing REP which required and intellect and energy that was not available from GC at the time not due to the competence of the staff but due to other priorities. George handed me some background on Spence whom I did not know except very vaguely at that time. His key program law position had been vacated by the departure of Craig Annear to EPA and Don Young. I begged George to hire Spence to cover at least the REP activity. Another fine lawyer inherited from the Chief Counsel staff of the Fire Administration prior to FEMA had also departed. He had been the REP lawyer. My Regional Counsels were not yet fully operative on REP and would not be for some time. I should say FEMA GC regional counsels. So Spence was hired as a GS-15 and headed the Program Law portfolio with George Watson, Bill Harding, Michael Hirsch and others reporting to him. He was however the principle national security and REP lawyer in headquarters.

Spence had gone to ICAF (Industrial College of the Armed Forces) in July 1985. Just after his arrival, Director Guiffrida and George Jett were relieved of their jobs, mandated in part by Chairman Boland and agreed to by the WH.
After 12 years of running FIA and FEMA litigation I was burned out and asked George W. Jett if I could replace Spence on an acting basis. George agreed so for one month I headed the Program Law Division in OGC.

During his time in FEMA, Spence with some caculation no doubt had befriended Robert M. Morris, the Senate confirmed Deputy of FEMA. When LOG left, Morris became Acting Director until the arrival of Julius Becton on November 9, 1986, as Director. Morris recalled Spence from ICAF to become the Acting GC of FEMA, a postion that was career SES and announced and filled (by Spence) over the next year. George W. Watson was recalled from his position in the immediate office of the Director FEMA and made the head of the Program Law Division, and to which I reported. Of course this disrupted by career plans since I planned to leave FEMA after the year Spence would have been away since I was not enamoured with the portfolio or personalities either in FEMA generally or the GC's office. More on that later.

Then in September 1986 I returned from my first real vacation time in FEMA, a month with family in the Pacific Northwest. I was called at home by Watson and told that with the termination of the Regional Counsels I would be assigned to the Shoreham Nuclear Power station administrative litigation and should report to FEMA Region II to accomplish that task. Essentially I was gone most of the time during the next 2 and 1/2 years conducting that litigation and other REP matters. Strangely, I was asked by Spence and George to interface quite often with DOJ on FEMA matters and also the National Security Counsel staff. So while they were essentially additional duties they were very interesting duties.
Then in early spring 1988 Spence had a nervous breakdown and was relieved of his position as GC of FEMA, in part because of his loss of all security clearances.
Julius Becton made George W. Watson the Acting General Counsel and that will become a later edition of this profile series. Spence came back to the OGC of FEMA as Ating GC in January 1993 when William Tidball was Acting Director of FEMA before James Lee Witt's arrival and he stayed on until September 1994 when John Carey arrived as the Presidentially appointed GC for FEMA. Not Senate Confirmed however. John will also be the subject of a later profile. When John arrived Spence briefly was Acting Federal Insurance Administrator and retired from that office if memory is correct and it may not be.

Profiles-The General Counsels-George Jett

CORRECTED VERSION: FEMA was an independent Executive Branch agency from April 1, 1979 to March 1, 2003. During that period and even before and after certain personalities and skills and competencies and lack thereof heavily influenced how the agency developed and operated. I have chosen to start with my former bosses during my tenure in FEMA from September 10, 1979 to my retirement on October 1, 1999. I will try and give an honest assessment but always remember my bias since I worked for them and most of the time were my immediate supervisor. So my first but not last profile will be of George W. Jett, the General Counsel of FEMA from its inception until his departure from that position, but not FEMA in July 1985.

George became a lawyer after completing night law school at GWU while working in procurement in DOD. He was physically a handsome man who was skilled both at golf and tennis. While a scholarship freshman at the U. Kentucky he was was matched against Jack Nicklaus and defeated him. Raised in Kentucky and a deeply religious man at least superficially, he led FEMA prayer breakfasts throughout his tenure, he often remarked of his interest in going to the seminary but never did. Once completing law school, and no novice in procurement, George went to first OMB then the HILL and then back to become the General Counsel of the Defense Civil Preparedness Agency which housed the Federal Civil Defense Act of 1950, Public Law 920 of the 81st Congress. He became the GC of DCPA in 1976. Shortly after the election of President James Earl Carter he was selected to be a key member of the President's Reorganization Project Team that led to the formulation and adoption of Reorganization Project No. 3 of 1978. Most of the team members which including Nye Stevens, later a GAO office director and the most talented of the team, William Jones, an OMB staffer formerly a civil servant in New Jersey, Robert Volland, the fiscal/budget manager at FDAA [Federal Disaster Assistance Administration] in HUD, Dave McGloughlin, the head of the Civil Defense College in Battle Creek, Michigan, and a PhD in education and some others were the core of the team. While not all treated the project as a country club atmosphere some did. One who definitely worked late nights and weekends as was his ususal, was William W.F.Jones who wants me to make clear and deserves to have his reputation unsullied by my casual comment. So be it. Bill worked very hard on the Reorganization as did some others and in many way became a model for reorganizations. The fact that no one involved in the DHS creation did much research into the FEMA reorg is probably one reason many many DHS problems are replays of FEMA startup problems. Hey those who forget history are condemned to relive it. Still much tennis and golf were played by other members of the team. The two OMB Reps, Nye Stevens and Mike Springer were the real drive sprockets for the whole effort. Mike unfortunately lost out to Volland as FEMA's first Comptroller and did not join FEMA. The final reorg product went to Congress on May 20, 1978, and not being disapproved by either house of Congress became law in September 1978, and was implemented April 1, 1979.

The legal team that assisted George from time to time included me, Michael Hirsch, Craig Annear, John Scheibel from HUD. From FPA [Federal Preparedness Agency] it included its General Counsel Don Young, and Spence W. Perry. Invidividual legal taskers would be issued from time to time by George and produced largely by this team. Most of the work product was not of particularly high quality largely due to the fact that none of the team members was relieved of day jobs so to speak in their home agencies. The Acting General Counsel of DCPA William Harding and his two cohorts,George W. Watson [later Acting GC of FEMA for a significant time and a significant period in FEMA's history] and William T. Booker both once with him at Battle Creek where DCPA or its predecessor had been located until relocation to DC in 1957 acted to provide most of the heavy lifting since George was still on paper their boss.

As the highest ranking lawyer in HUD to come to FEMA eventually, all the HUD lawyers having to apply for jobs with George while others were transferred in the OMB determination order, essentially George came to me first when tasking either for FDAA or FIA [Federal Insurance Administraton] the two components later to be included in FEMA from HUD.

Essentially the work consisted of weekly briefings of George and complying with his taskers. Mostly it was listing and giving some analysis of statutes that might be incorporated into FEMA.

As head of the President's Reorg team, Nye Stevens, supported by George promised Carter that 400 overhead positions in the predecessor agencies would be given up on the creation of FEMA. FEMA never really recovered from that decision. For example, the General Counsel of HUD Ruth T. Prokop had created a timesheet system for each attorney to complete. At the time of the key events of late 1977 and early 1978, 14 attorneys showed almost complete time and effort devoted to FDAA and FIA issues. George was given these documents but told Nye Stevens that 8 FTE slots from HUD was all that was necessary. That in itself helped destroy the effectiveness of FEMA's GC ops in the early years. Nonetheless, this time frame did result in an implementable reorganization despite President Carter when checking the approval block personally wrote the word "reluctantly" at the edge of the block.
George did have two strengths. First his knowledge of procurement and its dangers to appointed officials. Second his knowledge of Congress and its operations. He had worked as a staffer for Senator William Roth of Delaware, a distinguished Senator and Republican for several years. While to some extent a liberal Republican George throughout his time in government was never a Presidential or non-career appointee but a civil servant.

George confided to me that he was worried about keeping his job during the first REAGAN Administration but almost by accident he secured his position with Louis O. Guiffrida, Reagan's first FEMA Director. Late one afternoon in late spring of 1981 in a daily staff meeting, George abruptly announced to LOG and others that he had to leave early to attend church. After George's departure I later learned that he was discussed in depth by what most referred to as the California Mafia that had been brought in by LOG. That group itself is worthy of analysis and such will follow in due time. In fact LOG brought in some very very capable people to FEMA. At any rate the group discussed George in detail and whether he should stay as the GC. Donald Young was an obvious choice if George was not kept since his Republican credentials were above reproach and in fact he had guided the defense and operations of GSA on the Nixon Tapes FOIAs and other related Watergate issues. He was the career SES Deputy GC in FEMA until his departure to become Deputy Inspector General at another agency in early 90's. He was FEMA's best lawyer by far. At any rate the group concluded that George was an a religious Evangelical and was "connected" to the large group of evangelical appointees brought to federal service by President Reagan. So George stayed on.

George for reasons unknown had no interest or desire to know anything about FEMA's national security portfolio and that was left completely to Don Young and Spence Perry. During that period I was running the bulk of FEMA's civil litigation portfolio. This decision left George who did have an instinct for bureacratic infighting and operations out to see when the National Security Portfolio of FEMA became the dominant player in the FEMA of REAGAN's first Term. There were also NO landfalling hurricanes in REAGAN's first three years a remarkable fact since the only other President to be so lucky was either Calvin Coolidge or Herbert Hoover. NOAA records would record that detail.
LOG had substantially reorganized FEMA in September 1981, elimination the Mitigation and Research Directorate completely and reasigning its staff.

Agency records show that Colonel Ollie North entered FEMA HQ 44 time in the early 80's. That was in part because of the creation of the EMPB [Emergency Mobilization Preparedness Board] and interagency group mandated by Presidential memo and later designed to implement NSDD-47. But it is alleged that LOG and Ollie North were involved in gunrunning to the Contras in Nicarauga during that civil war. This was never proved and I was tasked to see if any mention of FEMA was made in the vast hearings on that subject conducted by Congressman Jack Brooke of Texas. No mention was ever made of FEMA except where as Chair Congressman Brooks refused to allow discussion of FEMA's COG program on the record. That program did not involve Contra support.

LOG was the longest serving FEMA Director until the service of James L. Witt. LOG career ended when he was investigate closely for kickbacks from contractor and the famous "stove" and apartment in Emmittsburg at the National Fire Academy and Emergency Management Institute both under the title the National Emergency Training Center formed when FEMA bought the campus of ST. Joseph's College for Women. Then Congressman Gore, later VP under Bill Clinton, led the charge. The Science Committee in the HOUSE for which Gore was chair had oversight because it had oversight of the Fire Prevention and Control Act of 1974, as amended.

When LOG recieved a formal letter from DOJ stating he was the target of a Grand Jury investigation and should retain counsel, George brought the letter to me asking me if he could represent LOG. I stated that no Civil Service lawyer or appointee or employee could ever represent anyone in or out of government on a criminal matter. George himself was worried that he might end up as a recipient of such a letter from DOJ but that never happened. What did happen is that Chairman Edward Boland of the Appropriations Committee in the House sent to the White House a list of persons to be dismissed from FEMA and also ordered a reduction in the line item accounts of the GC's office in FEMA. This cost George his job, although not his salary immediately since he was reassigned elsewhere in FEMA. LOG was obviously dismissed and a number of others. The line item reduction by Boland for the GC office cost that office the five (5) regional counsel positions which I had helped establish over the dissent of almost the entirety of the rest of the GC leadership and staff.

A complicated person, George was capable in many ways but the seeds of future problems were embedded by him in many ways for his office and FEMA. Still the record of the service deserves much more attention than possible to give on a blog. George was definitely a part of FEMA history and his being picked officially as the Career SES GC of FEMA by John W. Macy, Carter's choice as Director of FEMA influenced heavily FEMA's history.

Presidential Powers During National Emergencies

In January 1962 at the height of the Cold War the Committee on the Judiciary in the House of Representatives released what I view as an important baseline study of laws in effect during a national emergency. A URL has been created by Steve Aftergood of FAS for me for this document which has been previously unavailable in virtual form. Go to the following:
http://www.fas.org/sgp/library/fedlaw.pdf
Congress in my experience, only 45 years and going on, rarely challenges, studies, documents, or even tries to prevent President's from taking emergency actions when necessary for a variety of reasons. This history is long and complex and has not been studies adequately IMO by either academics or the legal profession in particular. One useful effort was the creation of a National Security law course with appropriate materials beginning in the late 80's and now in a 6th edition with appropriate teaching materials. I understand it is the most popular elective course in American law schools. Professors Stephen Dycus and Peter Raven-Hansen are to be congratulated for their efforts in focusing on the use of National Security authorities domestically. Prior to their efforts National Security law was viewed largely as International Relations and Treaty Law and did have some skillful analysis as for example by law professor John Norton Moore who developed several treatises on this approach.
The problem of course is just as Homeland Security has started evolving towards domestic issues of not just security but domestic INTEL, privacy, and civil liberties, and documentation of citizens and noncitizens, the superficial efforts to reconcile US history and the Constitution with these efforts will dominate Homeland Security for the rest of time. Why? Because in a way while the US may not be the "gold" standard anymore in economics or even good governance, as the oldest and richest democracy (republic in reality)the US is closely watched for how it handles these concerns that attempt to reconcile the rights of the individual against the state, and the majority or other significant groups.
I look forwards to posting more on this area of concern.

Going Out on a Limb!

Okay knowing little but at least and interested spectator. Here goes! First the Obama Administration has placed its bets on the survival long term of BP and its minions. Whatever the actual facts in the GOM! Why? My guess is poltical calculations and contributions and maybe even flat out corruption. A true innocent of an appointee was sacrificed at the MMS to feed the frenzy of the Witch Hunters which has now apparently ended as both the Administration and BP move on. Did you know that BP will only start funding the $20B escrow account starting with a $3B payment this CY quarter? And after another slug next quarter will fund the fund at about $1B at most a quarter until the end of 2013. Well BP is spinning that it is not looking for asset buyers but reassuring its investors by the various trips Tony Hayward is making globally. Turns out relieved of day-to-day duties in GOM so he could reassure investors. My guess is that BP will not survive this event. So only time will tell on that standpoint. If it does survive then we know for sure that complicity of the Adminstration was the principal reason.
And as in the Haiti Earthquake where the US pretended from the beginning that there was an operating government, which there is not, that paradigm will result directly in Haitian deaths, perhaps in thousands by Labor Day.
So we do know now that the administration is extremely capable of making decisions, bad decisions on almost no real information, and no wonder BP stock is climbing rapidly.
My guess is that when the feds finally look to filing lawsuits BP will not even be named. No in fact its indemnification clauses with other culprits in the GOM catastrophe will in fact be only litigated much later in time when all the other litigation is over and done with. An excellent discussion of the whole GOM activity and various reports is covered in RECOVERY DIVA blog by Claire B. RUBIN.

Because of that I will avoid blogging on BP until after Labor Day. Hey by that time the relief wells are supposed to have been finished and of course the spin will be that the crisis has ended. Don't think so.

The Orzag Memo

On July 1st 2010 Peter Orzag, Director of the Office of Management and Budget and about to depart as the first bailout official from the Obama Administration, meaning bailing out of his appointed job, not bailing out the country financially, issued a very very important memo to all federal Executive Branch components. Subject: Identifying and recording all direct and indirect expenses from the BP catastrophe. One might ask why this memo has suddenly appeared and is reference as being separate and apart from DOJ potential litigation information is extremely interesting.

That stated the issuance of the memorandum is of historic significance. Why? Imagine if each federal agency had to identify the costs of its operations aligned against certain events or occurrences or even companies. This was not done for the financial bailout and we [citizens of the US] will probably never know how the Federal Reserve Bank of the US used $12 Trillion in capital to prevent a collapse of the economy. I believe this memorandum should be closely analyzed and studied since I think it reflects finally the Administration realizing that it is accountable for the costs of the spill over and beyond hopefully BP's contributions but whether that is the case of not it must save the Gulf Coast economy from disaster. And note some economists have already stated the BP catastrophe will have no major impact on the domestic US economy. while I believe that the $12 Trillion paid out following the Lehman Bros. collapse may be closer to the mark for the BP catastrophe. Please note while indicating the $3B mark has been passed by BP supposedly in its GOM efforts we really have no breakdown for that effort,including lawyers and lobbyist fees to prevent any greater BP exposure than necessary. Also not that Kenneth Feinberg has finally become testy in public about BP's payments and their amounts.

Hey the bottom line is the largest enviromental fast breaking catastrophe in world history has yet to break the surface as to its total impacts, social, economic, environmental or whatever.

Commandant Instruction 16465.1

When in the DOT, the US Coast Guard issued the above document and not sure if it is current or not.

Entitled: SPILLS OF NATIONAL SIGNIFICANCE RESPONSE MANAGEMENT SYSTEM it established guidance for the INCIDENT COMMAND SYTEM.  The last page of the document is an appendix with a graphic of the Suggested Incident Command System Area Command Organization. My question is simple! Has anyone got information as to whether in fact that suggested reporting structure is in fact in place or modified? What I am most curious about is who exactly is the LOGISTICS CHIEF and who is the FINANCE OFFICER and do we have any names below Admiral Allan.

Given what I see as the start of a decades long process would be interesting to know what the 120 days and longer term planning is for logistics and finance. I would immediately order surging to accommodate the spill running through the end of the year, with appropriate risk assessment and strategizing and with the assumption there is no BP in operational support of restricting the flow after that time. Assuming I am correct than the Coasties will be dealing with a "responsible party" in bankruptcy or receivership and even if that does not happen what assets have been provided the Coasties to deal with that circumstance? Have we heard anything from the EXXON VALDEZ litigation team for UNCLE SAM and the Department of Justice? Or have they just switched sides in the intervention of father time.

The EXXON VALDEZ team ended up with a $500M damage award and EXXON spent under $3B in total. It would be of interest to see how EXXON's 10k filings with the SEC reflected events after that spill.What kind of guidance is now out to the Coasties, DHS generally and all other involved agencies and departments from the AG on this matter? What EXXON did do was file successive FOIA's for all government agencies and the AG himself sent a letter to all agency heads asking that documents be sent directly to DOJ before release. That request believe or not ended some careers in FEMA when it turned out that FEMA has extensive documentation that was within the FOIA even though the event was never declared.

And now we have learned that Former Governor Roy Mabus has been designated lead for the Gulf Coast Long-Term Recovery effort? Currently he serves as SECNAV and wondering if it is a delegation to him or just a designation? Either way of some significance because it seems to me a lot of other candidates exist that would be more appropriate.