Cyber Attacks, like the massive, global hack of May 12, 2017 constitute an existential threat to the US, global infrastructure, international supply chains, and generally the world as we know it. But not for the reasons you think . . .
While an invasive inconvenience to individuals and corporations, our governments take cyber attacks far more seriously. Why? Because many nations, especially the United States, consider these attacks as legitimate acts of war and terrorism.
In 2016, NATO officially recognized cyberspace as the fifth domain of warfare so it could respond with conventional weapons in case of a powerful cyber attack. This decision mirrored American military strategy which recognized cyberspace as a war zone in 2009 when the US Government established the United States Cyber Command (USCYBERCOM) to fulfill tasks related to cyber conflicts. Also, there are currently two bills before Congress receiving bi-partisan support, one each in the House and Senate and both called the “Cyber Act of War Act,” which give the President the ability to determine whether or not a cyber attack qualifies as an act of war.
However, the passage of these two bills is hardly necessary. The President already has the power to make that decision with a top-secret “Executive Directive” quietly put into place ten years ago.
This Directive gives him enormous power. So much that he could, at anytime, institute directives granting full and complete control of nearly every branch of government, private business, travel and, more ominously, the deployment of US troops on American soil.
This is not conspiracy theory. No FEMA Death Camps, Chemtrails, or Reptilian Alien Overlords here. This is fact based on standing laws, some classified top-secret, of which very few people, even those within elected office, are aware.
Don’t want the background on all this?
Skip down to the truly scary parts describing the ominous provisions of “Executive Directive 51.”
As cyber attacks become more frequent and destructive the President holds the authority to take extraordinary measures to protect and defend the country, including using Department of Defense military personnel on American soil, which in ordinary times is strictly forbidden.
The Insurrection Act of 1807 governs the ability of the President of the United States to deploy troops within the United States to put down lawlessness, insurrection and rebellion. The general aim is to limit presidential power as much as possible, relying on state and local governments for initial response in the event of insurrection. Coupled with the Posse Comitatus Act, Presidential powers for law enforcement are limited and delayed.
The Posse Comitatus Act of 1878, in concert with the Insurrection Act, more specifically limits the powers of the federal government in using federal military personnel to enforce domestic policies within the United States.
However, there are legal provisions to use federal military forces and other authorities within American territory in times of disasters, attacks, civil unrest or national emergencies.
The Constitution of the United States provides two exceptions for which the Posse Comitatus Act does not apply. These exceptions are based upon the inherent right of the U.S. government to ensure the preservation of public order and to carrying out governmental operations within its territorial limits by force, if necessary.
The first of these two exceptions is Emergency Authority. This refers to a sudden and unexpected civil disturbance, disaster, or calamity that seriously endangers life and property and disrupts normal governmental functions to such an extent that local authorities cannot control the situation. At such times, the federal government may use military force to prevent the loss of life or wanton destruction of property and to restore government functions and public order.
The second of these exemptions is the Protection of Federal Property and Functions. When the need for the protection of federal property or federal functions exists, and duly constituted local authorities are unable to, or decline to provide adequate protection, federal action, including the use of military forces, is authorized.
Further, laws passed by the U.S. Congress have created three other exceptions to the Posse Comitatus Act. With the first three laws listed below (10 USC 331–333), there is a prerequisite that the President must take personal action, including the issuance of a proclamation calling upon insurgents to disperse and retire peaceably within a limited time. The three exceptions are:
#1 – 10 USC 331. When a state is unable to control domestic violence and they have requested federal assistance, the use of the militia or Armed Forces is authorized.
#2 – 10 USC 332. When ordinary enforcement means are unworkable due to unlawful obstructions or rebellion against the authority of the United States, use of the militia or Armed Forces is authorized.
#3 – 10 USC 333. When a state cannot or will not protect the constitutional rights of the citizens, due to domestic violence or conspiracy to hinder execution of State or Federal law, the use of the militia or Armed Forces is authorized.
- There are a number of other situations in which the Insurrection and Posse Comitatus Acts do not apply. These include:
Army and Air National Guard units and state defense forces while under the authority of the governor of a state;
- Federal military personnel used in accordance to the Insurrection Act, as was the case during the 1992 Los Angeles Riots.
- Under 18 U.S.C. § 831, Attorney General, Jeff Sessions, may request that the Secretary of Defense, Jim Mattis, to provide emergency assistance if domestic law enforcement is inadequate to address certain types of threats involving the release of nuclear materials, such as potential use of a nuclear or radiological weapon. Such assistance may be by any personnel under the authority of the Department of Defense, provided such assistance does not adversely affect U.S. military preparedness. No proof of such a threat is required to initiate this command.
- Support roles under the Joint Special Operations Command.
The President can also utilize the Army’s Defense Support of Civil Authorities (DSCA) which is part of the synchronized Federal emergency response system for immediate assistance. This consists of a “total force effort” with soldiers who are trained, equipped and organized to perform a wide spectrum of operations, including homeland defense, homeland security, and civil support. The National Defense Authorization Act of 2012 enabled the Army Reserve to support lead agencies, such as DHS and FEMA, using its extensive combat service and combat service support capabilities to help save lives, prevent human suffering and mitigate extensive property damage. Current Army assets include 1,100 facilities located throughout the nation capable of providing temporary locations to support DSCA operations.
Executive Directive 51
We’ve been hearing a lot about Executive Orders lately. But the President has another tool he can use – The Executive Directive. And I’ve found one signed by George W. Bush that President Trump will never overturn: ED 51.
While the previously stated provisions give presidential authority to utilize American military forces on American soil within certain limitations, by far the strongest legal means by which the President can call upon Department of Defense and all other resources is the National Security Presidential Directive NSPD 51/Homeland Security Presidential Directive HSPD-20, commonly known as “Executive Directive 51.”
Created and signed by President George W. Bush on May 4, 2007, Executive Directive 51 establishes a plan for an “Enduring Constitutional Government,” or “ECG,” according to section 2E of the Directive. This “means a cooperative effort among the executive, legislative, and judicial branches of the Federal Government, coordinated by the President, as a matter of comity with respect to the legislative and judicial branches and with proper respect for the constitutional separation of powers among the branches, to preserve the constitutional framework under which the Nation is governed and the capability of all three branches of government to execute constitutional responsibilities and provide for orderly succession, appropriate transition of leadership, and interoperability and support of the National Essential Functions during a catastrophic emergency,” like a major cyber attack.
In essence, the phrase “coordinated by the President” allows for the Legislative and Judicial branches of government to transfer their power and authority to the Executive Branch in the event of a national emergency and for the purposes of preserving the nation.
As stated in the Executive Order, Directive 51 came “as a result of the asymmetric threat environment, adequate warning of potential emergencies that could pose a significant risk to the homeland might not be available, and therefore all continuity planning shall be based on the assumption that no such warning will be received. Emphasis will be placed upon geographic dispersion of leadership, staff, and infrastructure in order to increase survivability and maintain uninterrupted government functions.”
Only the highly classified annexes referred to in sections 23 and 24 of Directive 51 describe how this “dispersion of leadership” will take place. That’s correct. The truly powerful language of Directive 51 is top secret.
How secret are the classified sections of Directive 51?
See “Background” at the end of this article.
However, the unclassified sections we can see (now only posted officially for the public on an archived WhiteHouse.gov page) give broad discretion to the President in issuing action solely “when the President considers an emergency to have occurred,” according to Directive 51. The triggering event for the “continuity of government plan” is designated as a “catastrophic emergency” which in turn is defined as “any incident, regardless of location, that results in extraordinary levels of mass casualties, damage, or disruption severely affecting the U.S. population, infrastructure, environment, economy, or government functions.”
We can also see that The Directive requires all government agencies to have clear lines of succession if top officials are killed and be prepared to operate from a new headquarters within 12 hours of a catastrophe. They must be prepared “to lead and sustain the nation during a crisis,” a charge ranging from “providing leadership visible to the nation and the world” to “bringing to justice perpetrators of crimes or attacks.”
Power is centralized further as the directive moves disaster response authority from FEMA, the Federal Emergency Management Agency, to officials inside the White House. In particular, the directive establishes the position of “National Continuity Coordinator” within the White House, charging this official with “assisting Congress, the United States Supreme Court, and state and local leaders prepare for a worst-case scenario, in consultation with the National Security Adviser and the Vice-President.”
Finally, it provides “continuity planning requirements and guidance for federal and non-federal government jurisdictions and private sector critical infrastructure owners and operators.”
In short, the President, in executing Directive 51 can take over and control the government, the military and the private sector – meaning land, buildings, businesses, roads, and utilities including electricity, communications, and the internet.
And that’s just from the unclassified sections we know about. What greater powers do the classified Annexes provide to the President? What more could he need than it already gives him?
The only way we’ll know is when he decides to use it, perhaps after the next cyber attack.
The unclassified portion of the directive was posted on the White House website on May 9, 2007, without any further announcement or press briefings. The posting has since been archived by the Trump administration.
The signing of the Directive was generally not covered by the media nor discussed by the U.S. Congress upon its signing. While similar executive security directives had been issued by previous Presidents, with the entirety of their content kept secret, this was the first to have part of its language and intent made public.
In July 2007, after receiving concerned communications from constituents, U.S. Representative and Homeland Security Committee member Peter DeFazio made an official request to examine the classified sections of the Directive in a secure “bubbleroom” within the United States Capitol. His request was denied by the Bush White House which cited “national security concerns.” DeFazio had never before been denied access to any documents he requested. “We’re talking about the continuity of the government of the United States of America,” he stated. “I would think that would be relevant to any member of Congress, let alone a member of the Homeland Security Committee.”
The language in question, contained in the publicly available Directive states, “The classified Continuity Annexes, attached hereto, are hereby incorporated into and made a part of this directive. This directive and the information contained herein shall be protected from unauthorized disclosure, provided that, excepts for Annex A, the Annexes attached to this directive are classified and shall be accorded appropriate handling, consistent with applicable Executive Orders.”
In short, “no one gets to read this part.”