Posts from July, 2012

An Overview of the Affordable Care Act, and More from CRS

Updated reports from the Congressional Research Service that Congress has not made readily available to the public include the following.

ACA: A Brief Overview of the Law, Implementation, and Legal Challenges, July 3, 2012

Individual Mandate and Related Information Requirements under ACA, July 2, 2012

Foreign Holdings of Federal Debt, July 3, 2012

Mexico’s Free Trade Agreements, July 3, 2012

Navy Aegis Ballistic Missile Defense (BMD) Program: Background and Issues for Congress, July 2, 2012


Air Force Policy on Congressional Relations

The U.S. Air Force says its policy is to provide information to Congress as needed, but with preference given to members of the Armed Services Committees over other Committees, and to the Chairman and the Ranking Member of the Armed Services Committees over other members.

“Per OSD Policy, Congressional Member clearances are automatic once the Member is elected into their current position in the United States Senate or U.S. House of Representatives. Once a Member is elected as a seated member of Congress, the Member is automatically read into SCI [sensitive compartmented information] and any other classification needed,” a newly revised Air Force Instruction explains.

“Members of Congress assigned to the defense committees (and to the intelligence committees only for intelligence SAPs) are accessed to all DoD SAPs, except for a limited number of programs judged to be of extreme sensitivity, referred to as waived SAPs.”  SAPs stands for “special access programs” which are classified programs involving access controls that are more restrictive than for other classified information.  “Waived SAPs” are a subset of SAPs that are briefed to only a select group of congressmen.

“Members of Congress not assigned to the defense committees (and to the intelligence committees only for intelligence SAPs) will be granted access to DoD SAPs (non-waived SAPs only) with the concurrence of the DoD after consultation with the Chairman and Ranking Member of the defense committees.”

“Air Force officials may not disclose classified information to the Congress for release to a congressional constituent.”

Remarkably, Members of Congress who seek information for their own legislative purposes enjoy no special treatment from the Air Force, according to the Air Force.

“Requests from Members of Congress not seeking records on behalf of a Congressional Committee, Subcommittee, either House sitting as a whole, or made on behalf of their constituents shall be considered the same as any other requester.”  See “Air Force Relations With Congress,” Air Force Instruction 90-401, 14 June 2012.

Covert Action is Prominent in Carter Admin History

Covert action was a particularly prominent feature of U.S. foreign policy during the Jimmy Carter Administration, according to a report last month from the State Department Historical Advisory Committee.  Covert action or other intelligence activities are said to figure in at least half of the volumes that will constitute the official record of the Carter Administration’s foreign affairs.

The Historical Advisory Committee reported to the Secretary of State on June 13 regarding progress (or lack thereof) in the production of the official Foreign Relations of the United States (FRUS), which is the documentary record of U.S. foreign policy.  Although there is a statutory requirement that FRUS be published no later than 30 years after the events it records, the series has never yet met that mandatory benchmark.

One of the obstacles to timely publication has been the need for a so-called High-Level Panel (HLP) composed of State, CIA and NSC officials to review documents related to covert action and other sensitive intelligence activities.  Since the early 1990s, “more than 40 covert intelligence activities have now been acknowledged for publication in the [FRUS] series,” the Committee report noted.  However, any FRUS volume requiring HLP review “will spend at least one additional year, and often many more than one, in the declassification pipeline.”

The Committee report said that the challenge to timely publication will only increase because “at least half of the Carter volumes will require resolution of HLP issues.”

In other words, of the 28 projected FRUS volumes for the Carter Administration, at least half involve covert action or other sensitive intelligence activities.

This “seems high,” a former State Department official told Secrecy News.  “Nowhere near half of the Nixon-Ford volumes had HLP [covert action] issues and it’s hard to believe there were more covert actions going on during the 4 years of Carter than during the 8 Nixon-Ford years.”

The largest single covert action at that time would have been in Afghanistan, particularly following the Soviet intervention in 1979, said intelligence historian John Prados.  He said there was also widespread intelligence involvement in “radio operations” around the globe, close observation of Cyprus, some focus on the PLO, some activity in South Yemen, and actions to counter the Cuban presence in various parts of Africa and Latin America.

Though some of this material is public knowledge, that will not necessarily expedite the task of publishing the FRUS series.

“The CIA… resolutely resists declassifying documents that entered the public domain through irregular channels,” the State Department Historical Advisory Committee said.

“These documents are widely known to scholars, and thus CIA’s policy presents a special challenge for the HO [State Department Historian's Office] to publish [FRUS] volumes that meet the [statutory] standard of a ‘thorough, accurate, and reliable’ documentary record of United States foreign policy,” the Committee report said.

CIA’s self-perception of its disclosure practices is rather different and altogether more flattering than the despairing view held by non-Agency historians, FOIA requesters, and others who attempt to elicit information from the Agency.

“CIA, unlike any other agency in the Intelligence Community, much less Federal Government, makes discretionary releases of historically significant documents available to the public, journalists, and academicians in a purposefully organized manner,” the CIA stated in a March 2012 report from the CIA Chief FOIA Officer.

“CIA continues to inform record numbers of citizens, demonstrating our commitment to the Open Government Initiative and its three goals of transparency, participation, and collaboration,” the CIA report said.

Financial Costs of Classification Soar

At a time when “leaks” are said to be running rampant, the government is spending more money than ever before to protect classified information.  The estimated cost of securing classified information in government increased last year by at least 12% to a record high level of $11.36 billion.  An additional $1.2 billion was spent to protect classified information held by industry contractors.

These figures were reported to the President last week by the Information Security Oversight Office.  (More from Federal Times.)

The ISOO report breaks down the expenditures into six categories (personnel security, physical security, etc.).  But it does not provide any explanation for the rapidly escalating cost of secrecy.

One factor in the rising costs may be the continued growth of the secrecy system.  While some essential security costs are fixed and independent of classification activity, the failure to rein in classification and especially overclassification is a likely contributor to marginal cost growth.  The ISOO report itself provides a stark illustration of the overclassification problem when it notes that the classification costs of several intelligence agencies — CIA, DIA, ODNI, NGA, NRO and NSA — are excluded from the new report because they are classified.

“The cost estimates of these agencies are classified in accordance with Intelligence Community classification guidance and are included in a classified addendum to this report,” the ISOO report states.

But the classification of this information, which is almost certainly illegitimate, defies credulity for several reasons.

First, the secret intelligence cost numbers are estimates, not actual expenditures.  (“Requiring agencies to provide exact responses to the cost collection efforts would be cost prohibitive,” ISOO said.)  The potential intelligence value of such estimates to a hostile intelligence service is vanishingly small, particularly since their accuracy is variable and uncertain.

Second, the disclosure of the cost estimates for non-intelligence agencies, which has had no adverse effect on the security programs of those agencies, is a strong indication that no damage can result from release of such information.  If publication of the non-intelligence classification cost estimates had caused any kind of harm over the years, those estimates would not be published.  But of course they haven’t, and so they are.

Thus, one is led to conclude that the classification of the intelligence agency classification cost estimates is not threat-driven, but instead is “culture”-based.  The disclosure of the estimates would not cause identifiable damage to national security, which means this information has been classified in violation of executive order 13526.

Unfortunately, there seems to be no one to tell the DNI that his classification policies are mistaken.  Congress could perform critical oversight of classification policy, inquiring into the basis of particular classification decisions, but it almost never does so.  If anything, congressional leaders favor more aggressive and unforgiving enforcement of existing classification policies.  The Obama Administration’s Fundamental Classification Guidance Review was supposed to challenge the habits of reflexive classification, but in this case at least it has not had the desired effect.

If some rogue employee leaked a copy of the classification cost estimates for the intelligence agencies, he or she would be subject to new procedures announced by the Office of the Director of National Intelligence last week to combat unauthorized disclosures, including polygraph testing and inspector general investigations.

In the absence of leaks, the estimated cost of implementing the DNI’s new anti-leak procedures will be classified and unavailable to the public.

The DNI as Security Executive Agent

The anti-leak procedures announced last week by the Director of National Intelligence apply specifically to intelligence community employees.  But the DNI is also responsible more broadly for security policies that affect almost everyone who holds a security clearance for access to classified information, whether or not it pertains to intelligence, as well as other government employees who are candidates for “sensitive positions.”

The DNI’s role as “Security Executive Agent” was described in a March 2012 directive, according to which he is responsible for oversight of “investigations and determinations by any agency for eligibility for access to classified information and eligibility to hold a sensitive position.”

The DNI’s authority extends to every individual who has or seeks access to classified information with only a handful of exceptions:  the President, the Vice President, Members of Congress, Justices of the Supreme Court, and Federal judges appointed by the President.

In this capacity, the DNI is responsible for developing standardized procedures for security questionnaires, financial disclosure forms, polygraph policies and practices, and foreign travel and foreign contact reporting requirements.  See “Security Executive Agent Directive (SEAD) 1,” effective 13 March 2012.

“SEAD 1 applies to all departments and agencies performing investigations or adjudications of persons proposed for eligibility to hold a sensitive position whether or not requiring access to classified information,” said Charles B. Sowell of ODNI in congressional testimony last month.   “The ODNI also led the interagency efforts to revise the National Security Adjudicative Guidelines” — which are used to evaluate a person’s loyalty, reliability and trustworthiness — “which we expect to issue later this year,” he said.

Role of Intelligence Community Contractors Questioned

Persistent questions about the U.S. intelligence community’s reliance on contractors to perform or support core mission functions were explored in a partially closed hearing of the Senate Homeland Security Committee last year.  A redacted transcript of the classified session of the hearing was included in a hearing volume which was recently published.

Among other things, “questions have been raised about whether some IC contracting firms hold undue influence within the IC because senior intelligence officials are often recruited from, and often return to, these firms,” according to a background paper prepared for the hearing (citing author Tim Shorrock) and included in the appendix to the PDF version of the new hearing volume.

“A ‘revolving door’ where employees move between public and private sector service increases the risk that decisions made by either contractor or government employees could be influenced by past professional relationships or potential future employment opportunities.”

“Some have also highlighted concerns about contractors who immediately return to their former IC agency [as private sector employees], but serve in the same capacity and at greater expense,” the background paper stated (citing reporting by Julie Tate of the Washington Post).

“In addition to clear conflicts of interest, the different incentives of corporations and their employees versus federal agencies and their employees create the need for robust oversight.  For example, the need to make corporate profits could create an incentive to provide analysis or decision support services in a manner that is likely to increase future business opportunities.”

“Additionally, because contract employees owe a duty of loyalty to their employers rather than the U.S. government, they may have incentives to act in the interest of their employers rather than in the interests of the government where those interests differ,” the background paper said.

At first glance, the questions seemed more interesting than the answers that intelligence community officials were able to provide at the hearing, but it was remarkable to see those questions raised at all.  The hearing was held not by the Senate Intelligence Committee, but by a subcommittee of the Senate Homeland Security and Governmental Affairs Committee chaired by retiring Senator Daniel Akaka (D-HI).

See “Intelligence Community Contractors: Are We Striking the Right Balance,” September 20, 2011.

Second Thoughts in Congress About Domestic Drones

Some members of Congress are having second thoughts about the future use of unmanned aerial systems in U.S. airspace, judging from a colloquy on the House floor last week.

When Congress passed the FAA reauthorization bill, recalled Rep. Michael Burgess (R-TX), it included “this very simple language allowing for the expansion of unmanned aerial vehicles in the national airspace.”

“None of us really thought that was much of a problem, but our constituents are bringing it back to us,” Rep. Burgess said. “They are concerned about privacy, and they’re concerned about Federal agencies surveilling normal activities of commerce in which people may be engaged.”

Looking beyond privacy concerns, Rep. Burgess proposed an amendment to the Transportation Appropriations bill that would prohibit the use of armed drones within the United States.

“If these drones are weaponized, you can–if you’ve been surveilled unfairly, you can go to court and perhaps seek a remedy. But if a bullet is fired from one of these platforms, you don’t have any remedy if you’re the recipient of that bullet,” he said.

“The amendment that I offer today is preemptive. As to my knowledge, no actual applications have been filed with the FAA to use armed drones in U.S. airspace. But I believe it is necessary, as there has been some discussion in the public media about the ability to arm unmanned aerial vehicles. I personally believe this is a road down which we should not travel,” Rep. Burgess said.

However, the amendment was rejected for procedural reasons.

Similar legislation sponsored by Rep. Rush Holt (D-NJ) was approved last month as an amendment to the pending Homeland Security Appropriations bill.

Hydropower, High Speed Rail, Haiti, and More from CRS

New and updated reports from the Congressional Research Service that has Congress has not authorized CRS to release to the public include the following.

Hydropower: Federal and Nonfederal Investment, June 26, 2012

The Development of High Speed Rail in the United States: Issues and Recent Events, June 28, 2012

Haiti Under President Martelly: Current Conditions and Congressional Concerns, June 6, 2012

Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions, June 29, 2012

U.S. Foreign Assistance to Latin America and the Caribbean: Recent Trends and FY2013 Appropriations, June 26, 2012

China’s Economic Conditions, June 26, 2012

Navy Shipboard Lasers for Surface, Air, and Missile Defense: Background and Issues for Congress, June 29, 2012

Cluster Munitions: Background and Issues for Congress, June 27, 2012

How FDA Approves Drugs

The procedures by which the Food and Drug Administration approves drugs and medical devices for use in the United States were addressed in a cluster of reports from the Congressional Research Service.

How FDA Approves Drugs and Regulates Their Safety and Effectiveness, June 25, 2012

FDA’s Authority to Ensure That Drugs Prescribed to Children Are Safe and Effective, June 25, 2012

FDA Regulation of Medical Devices, June 25, 2012

The FDA Medical Device User Fee Program, June 25, 2012