Posts from November, 2012

Securing U.S. Diplomatic Facilities, and More from CRS

In almost every year since 2007, Congress appropriated less money for diplomatic security than had been requested.  In FY2012, the State Department sought $2.9 billion for security, and Congress enacted $2.6 billion.

The diplomatic security function, including its funding profile, was discussed in the light of recent attacks of U.S. diplomatic facilities in Benghazi, Libya and elsewhere in a new report from the Congressional Research Service. See Securing U.S. Diplomatic Facilities and Personnel Abroad: Background and Policy Issues, November 26, 2012.

Some other new and updated CRS reports that have not been made publicly available include the following.

Panama: Political and Economic Conditions and U.S. Relations, November 27, 2012

The Judgment Fund: History, Administration, and Common Usage, November 26, 2012

Financing the U.S. Trade Deficit, November 16, 2012

Saudi Arabia: Background and U.S. Relations, November 27, 2012

Some Basic Budget Tutorials from CRS

In a series of newly updated reports presumably intended for new Members of Congress who are unfamiliar with basic features of the federal budget, the Congressional Research Service presented the very rudiments of the budget process.  See:

Basic Federal Budgeting Terminology, November 26, 2012

Overview of the Authorization-Appropriations Process, November 26, 2012

Baselines and Scorekeeping in the Federal Budget Process, November 26, 2012

Budget Reconciliation Legislation: Development and Consideration, November 26, 2012

Entitlements and Appropriated Entitlements in the Federal Budget Process, November 26, 2012

Legislative Procedures for Adjusting the Public Debt Limit: A Brief Overview, November 26, 2012

Evolution of Remote Sensing and National Security

A study performed for the National Geospatial-Intelligence Agency (NGA) “chronicles the policy history of civil and commercial remote sensing from 1960 through 2008.”

The study “highlights the difficulties in establishing a consistent government role in a field where public good and private profit exist side-by-side, and where business interests have the potential to contribute to and conflict with national security interests.”

See U.S. National Security and Economic Interests in Remote Sensing: The Evolution of Civil and Commercial Policy by James A. Vedda, The Aerospace Corporation, February 20, 2009.

The unclassified study was released yesterday by NGA three years after it was requested under the Freedom of Information Act.

Classification Decisions are Reviewable by Courts, Govt Admits

Executive branch decisions to classify national security information are subject to judicial review in Freedom of Information Act cases, government attorneys acknowledged in a brief filed yesterday.

That potentially explosive question arose following an extraordinary ruling by a federal judge ordering the U.S. Trade Representative to release a one-page classified document that had been requested under the FOIA by the Center for International Environmental Law.  The document’s classification was not “logical,” said DC District Judge Richard W. Roberts last March, and therefore it was not exempt from public disclosure.

The government appealed that ruling in September, but stopped short of asserting that the court had no authority to order release of the classified document.

Yesterday, in response to arguments presented in an amicus brief from media organizations, government attorneys made their acceptance of judicial review explicit in a final reply brief.

“We agree that district courts (and courts of appeals) play an important role in evaluating the government’s compliance with its obligations under FOIA, in Exemption 1 cases [involving national security classification] as well as others….”

“We have not sought to diminish the role of courts in FOIA Exemption 1 cases, nor have we suggested that the Executive’s determination that a document is classified should be conclusive or unreviewable,” attorneys wrote in the November 27 brief (at p. 8).

In other words, the government did not assert that the executive has some kind of transcendent Article II classification power, nor did government attorneys contend (à la Egyptian President Morsy) that the judicial review provisions of FOIA are an unconstitutional infringement on executive authority.

This was the crucial information policy question that was raised by the move to appeal Judge Roberts’ highly unusual disclosure order, and the government has more or less resolved it by submitting to the discipline of judicial review.

What remains is a bona fide dispute:  Was the decision to classify the USTR document well-founded and plausible, as the government insists, and therefore entitled to judicial deference?  Or was it illogical, as the lower court ruled, nullifying the document’s exemption from FOIA?

Oral arguments in the case are scheduled for February of next year.

Does Foreign Aid Work?, and More from CRS

New and newly updated reports from the Congressional Research Service obtained by Secrecy News that have not been made publicly available include the following.

Does Foreign Aid Work? Efforts to Evaluate U.S. Foreign Assistance, November 19, 2012

Congressional Redistricting: An Overview, November 21, 2012

Update on Controlling Greenhouse Gases from International Aviation, November 19, 2012

The Federal Acquisition Regulation (FAR): Answers to Frequently Asked Questions, November 16, 2012

Gangs in Central America, November 26, 2012

The Federal Food Safety System: A Primer, November 26, 2012

The President’s Office of Science and Technology Policy: Issues for Congress, November 26, 2012

White House Advances Insider Threat Policy

In a memorandum to agency heads last week, President Obama transmitted formal requirements that agencies must meet in order “to deter, detect, and mitigate actions by employees who may represent a threat to national security.”

Along with espionage and acts of violence, the National Insider Threat Policy notably extends to the “unauthorized disclosure of classified information, including the vast amounts of classified data available on interconnected United States Government computer networks.” To combat such unauthorized disclosures, agencies are required to “monitor employee use of classified networks.”

The new standards, which have not been made publicly available [update: now available here], were developed by an interagency Insider Threat Task Force that was established by President Obama in the October 2011 executive order 13587, and they reflect the ongoing tightening of safeguards on classified information in response to the voluminous leaks of the last few years.

But the latest issuance also illustrates the superfluousness (or worse) of current congressional action concerning leaks.  Executive branch agencies do not need Congress to tell them to develop “a comprehensive insider threat program management plan,” as would be required by the Senate version of the pending FY2013 Intelligence Authorization Act (section 509).  Such plans will go forward in any case.

Sen. Ron Wyden has placed a hold on the pending intelligence bill, citing objections to several of the proposed anti-leak provisions contained in Title V of the bill. He said the proposed steps were misguided or counterproductive.

“I am concerned that they will lead to less-informed public debate about national security issues, and also undermine the due process rights of intelligence agency employees, without actually enhancing national security,” he said on November 14.  (See related coverage from FDL, POGO, LAT.)

The most problematic measures in the Senate bill are those intended to restrict contacts between reporters and government officials.

Senator Wyden said that legislative actions to limit the ability of the press to report on classified matters could undermine or cripple the intelligence oversight process.

“I have been on the Senate Intelligence Committee for 12 years now, and I can recall numerous specific instances where I found out about serious government wrongdoing–such as the NSA’s warrantless wiretapping program, or the CIA’s coercive interrogation program–only as a result of disclosures by the press,” he said.

*    *    *

The record of a July 2012 House Judiciary Committee hearing on National Security Leaks and the Law has recently been published.

IG Review of FISA Compliance Completed But Not Released

The Office of the Inspector General (OIG) of the Department of Justice said it had recently completed a review of the Department’s use of Section 702 of the Foreign Intelligence Surveillance Act (FISA) Amendments Act (FAA), but the report is classified and its findings have not been released.

“The OIG examined the number of disseminated FBI intelligence reports containing a reference to a U.S. person identity, the number of U.S. person identities subsequently disseminated in response to requests for identities not referred to by name or title in the original reporting, the number of targets later determined to be located in the United States, and whether communications of such targets were reviewed.  The OIG also reviewed the FBI’s compliance with the required targeting and minimization procedures,” according to a November 7 OIG memorandum on Top Management and Performance Challenges in the Department of Justice.

A copy of the classified report has been requested under the Freedom of Information Act.

Earlier this year, Sen. Ron Wyden placed a hold on reauthorization of the FISA Amendments Act “because I believe that Congress does not have enough information about this law’s impact on the privacy of law-abiding American citizens, and because I am concerned about a loophole in the law that could allow the government to effectively conduct warrantless searches for Americans’ communications.”

Autonomy in Weapon Systems

The Department of Defense issued a new Directive last week establishing DoD policy for the development and use of autonomous weapons systems.

An autonomous weapon system is defined as “a weapon system that, once activated, can select and engage targets without further intervention by a human operator.”

The new DoD Directive Number 3000.09, dated November 21, establishes guidelines that are intended “to minimize the probability and consequences of failures in autonomous and semi-autonomous weapon systems that could lead to unintended engagements.”

“Failures can result from a number of causes, including, but not limited to, human error, human-machine interaction failures, malfunctions, communications degradation, software coding errors, enemy cyber attacks or infiltration into the industrial supply chain, jamming, spoofing, decoys, other enemy countermeasures or actions, or unanticipated situations on the battlefield,” the Directive explains.

An “unintended engagement” resulting from such a failure means “the use of force resulting in damage to persons or objects that human operators did not intend to be the targets of U.S. military operations, including unacceptable levels of collateral damage beyond those consistent with the law of war, ROE [rules of engagement], and commander’s intent.”

The Department of Defense should “more aggressively use autonomy in military missions,” urged the Defense Science Board last summer in a report on “The Role of Autonomy in DoD Systems.”

The U.S. Army issued an updated Army Field Manual 3-36 on Electronic Warfare earlier this month.

India-U.S. Security Relations, and More from CRS

New and updated reports from the Congressional Research Service that have not been made readily available to the public include the following.

India-U.S. Security Relations: Current Engagement, November 13, 2012

A Guide to China’s Upcoming Leadership Transitions, October 16, 2012

U.S. Trade and Investment Relations with sub-Saharan Africa and the African Growth and Opportunity Act, November 14, 2012

Roles and Duties of a Member of Congress, November 9, 2012

The Congressional Research Service made a humorous appearance in the Doonesbury comic strip on November 24, in connection with the report on tax cuts that was withdrawn in response to criticism from some Republican Senators.

In fact, as often noted, members of Congress of both parties consistently withhold public access to most CRS reports.

Academy Report on Electric Grid Withheld for Five Years

Over the objections of its authors, the Department of Homeland Security classified a 2007 report from the National Academy of Sciences on the potential vulnerability of the U.S. electric power system until most of it was finally released yesterday.

The report generally concluded, as other reports have, that the electric grid is lacking in resilience and is susceptible to disruption not only from natural disasters but also from deliberate attack.

But even though the report was written for public release, the entire document was classified by DHS and could not be made available for public deliberation.  Amazingly, it took five years for the classification decision to be reviewed and reversed.  As Academy leaders explained in the Foreword to the report:

“DHS concluded that the report would be classified in its entirety under the original classification authority vested in the DHS undersecretary for science and technology. Because the committee believed that the report as submitted contained no restricted information, the NRC [National Research Council] requested the formal classification guidance constituting the basis for the classification decision. That guidance was not provided, and so in August 2010, the NRC submitted a formal request for an updated security classification review. Finally, in August 2012, the current full report was approved for public release, reversing the original classification decision, except that several pages of information deemed classified are available to readers who have the necessary security clearance.”

“We regret the long delay in approving this report for public release,” wrote Ralph J. Cicerone, president of the National Academy of Sciences, and Charles M. Vest, president of the National Academy of Engineering in the Foreword.

“We understand the need to safeguard security information that may need to remain classified,” they wrote. “But openness is also required to accelerate the progress with current technology and implementation of research and development of new technology to better protect the nation from terrorism and other threats.”

They said that a workshop was planned to address changes that have occurred since the report was completed in 2007.

See “Terrorism and the Electric Power Delivery System,” National Research Council, released November 14, 2012.  (More from Foreign Policy, NYT)

Classification policy at the Department of Homeland Security has become somewhat more streamlined lately as a result of the Obama Administration’s Fundamental Classification Guidance Review.

Of the Department’s 74 security classification guides, 45 were revised and 16 were cancelled.  Overall, 157 subtopics that had been classified — and that could be used to justify classification of DHS records — “were determined to no longer require classification,” according to the DHS final report on the Fundamental Classification Guidance Review of July 16, 2012.