Posts from February, 2013

The State of the Union Address, and More from CRS

New and updated reports from the Congressional Research Service that Congress has opted not to make directly available to the public include the following.

U.S.-South Korea Relations, February 5, 2013

Government Assistance for AIG: Summary and Cost, February 7, 2013

Prospects for Coal in Electric Power and Industry, February 4, 2013

Role of Home State Senators in the Selection of Lower Federal Court Judges, February 11, 2013

Nondiscrimination in Environmental Regulation: A Legal Analysis, February 6, 2013:

Afghanistan: Post-Taliban Governance, Security, and U.S. Policy, February 8, 2013

The Debt Limit: History and Recent Increases, February 7, 2013

Navy Force Structure and Shipbuilding Plans: Background and Issues for Congress, February 11, 2013

Navy DDG-51 and DDG-1000 Destroyer Programs: Background and Issues for Congress, February 11, 2013

The President’s State of the Union Address: Tradition, Function, and Policy Implications, December 17, 2012

Leak of White Paper Boosts Intelligence Oversight

The unauthorized disclosure last week of a Justice Department White Paper on the legality of targeted killing of senior al Qaida operatives who are Americans had the collateral effect of strengthening congressional oversight of intelligence.

The leak not only fulfilled a stalemated congressional effort to provide information to the public, but it also catalyzed the long-sought disclosure of classified documents to the intelligence committees themselves.

Although the intelligence committees received the White Paper in June 2012, they proved powerless on their own to gain its broader public release, or to acquire their own copies of the underlying legal memoranda.

“I have been calling for the public release of the administration’s legal analysis on the use of lethal force–particularly against U.S. citizens–for more than a year,” said Sen. Dianne Feinstein, the chair of the Senate Intelligence Committee in a February 5 statement. “That analysis is now public….”

In other words, what the chairman of the Senate Intelligence Committee was unable to accomplish for over a year was achieved by a resourceful reporter (Michael Isikoff of NBC) along with a cooperative source.  That is a peculiar fact that ought to prompt some soul-searching on the part of the Committee, which has been relentlessly critical of intelligence-related leaks.

But the disclosure did more than just make the White Paper available to the public and launch a substantial public debate on its contents.  It also enhanced the ability of the intelligence committees themselves to gain access to additional classified records on which oversight depends.

Specifically, it was the leak of the White Paper that enabled the belated disclosure of two classified Office of Legal Counsel memoranda to the intelligence committees last week.

The causal relationship between the leak and the release of the OLC memos was made explicit by White House press secretary Jay Carney at a February 7 press gaggle.

“I mean, there has always been some interest, obviously, but there has been heightened interest.  I think that what you’ve seen in the — because of the public disclosure of the white paper, is that that interest reached higher levels than in the past, and therefore this decision was made to make this extraordinary accommodation to provide classified Office of Legal Counsel advice,” Mr. Carney said.

This statement neatly illustrates the synergy that can exist among robust national security reporting, public awareness and effective intelligence oversight.

Yet the Senate Intelligence Committee in particular seems to have lost sight of the benefits for its own work of press attention and public engagement. The February 7 hearing on the nomination of John Brennan to be Director of CIA marked the end of a period of more than one year — dating from January 31, 2012 — without a public hearing. This may be an unprecedented hiatus in the history of the Senate Committee.  (The House Intelligence Committee has held public hearings more frequently.)  In light of last week’s events, the nearly exclusive emphasis on closed hearings should perhaps be reconsidered.

DoJ White Paper Released as a Matter of “Discretion”

Updated below

Late Friday afternoon, the Department of Justice released an official copy of its White Paper on lethal targeting of Americans to Freedom of Information Act requesters, including FAS and Truthout.org, several days after it had been leaked to the press.

The official version appears to be identical to the document posted by NBC News, except that it contains a notation on the first page stating “Draft November 8, 2011.” (It also lacks the heavy-handed NBC watermark.)

“The Department has determined that the document responsive to your request is appropriate for release as a matter of agency discretion,” wrote Melanie Ann Pustay, director of the Office of Information Policy at the Department of Justice.

This is a surprising statement, because as recently as two or three weeks earlier, the Department had said exactly the opposite.

“The document is protected by the deliberative process privilege, and is not appropriate for discretionary release at this time,” wrote Paul Colborn of the DoJ Office of Legal Counsel in a January 23, 2013 denial letter to the New York Times.

What changed in the interim?  Obviously, the fact that the document leaked — and had already been read by most people who cared to do so — altered DoJ’s calculation.  The decision to cease withholding the document in light of its public availability displays some minimal capacity for reality-testing.  To continue to insist that the document was protected and exempt from release would have been too absurd.

But the Freedom of Information Act process is supposed to meet a higher standard than “not absurd,” and in this case it failed to do so.

According to a FOIA policy statement issued by Attorney General Eric Holder in 2009, “an agency should not withhold information simply because it may do so legally.  I strongly encourage agencies to make discretionary disclosures of information. An agency should not withhold records merely because it can demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption.”

The Attorney General’s policy cited President Obama’s own statement on FOIA which declared that “The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.”

The pre-leak withholding of the White Paper on targeted killing appears to have been inconsistent with both policy statements.  It is now clear that only “speculative or abstract fears” were at issue, not actual hazards.

Was the release of the memo “a threat to national security”?  A reporter asked that question at the White House press briefing on February 5. “No. No,” said Press Secretary Jay Carney.  “It wasn’t designed for public release, but it’s an unclassified document.”

“And since it is out there,” he added, “you should read it.”

Last week, Reps. Darrell Issa and Elijah Cummings of the House Committee on Oversight and Government Reform asked the Department of Justice to explain several apparent inconsistencies between FOIA policy and actual practice.

“The Committee seeks information about a number of issues including what many term as outdated FOIA regulations, exorbitant and possibly illegal fee assessments, FOIA backlogs, the excessive use and abuse of exemptions, and dispute resolution services,” they wrote in a February 4 letter.

Update: The belated release of the White Paper may have been dictated by tactical considerations intended to evade an ACLU FOIA lawsuit for related records, suggests Marcy Wheeler at Emptywheel.

US Military Casualty Statistics, and More from CRS

A sobering compilation of statistics on injuries sustained by U.S. military personnel in Iraq and Afghanistan was updated this week by the Congressional Research Service based in part on data that CRS gathered from the Pentagon.

“This report includes statistics on post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), amputations, evacuations, and the demographics of casualties,” the CRS report said. “Some of these statistics are publicly available at the Department of Defense’s (DOD’s) website, whereas others have been obtained through contact with experts at DOD.”  See U.S. Military Casualty Statistics: Operation New Dawn, Operation Iraqi Freedom, and Operation Enduring Freedom, February 5, 2013.

Another newly updated CRS report presents an informative and diverting account of politics in China.

“China’s Communist Party dominates state and society in China, is committed to maintaining a permanent monopoly on power, and is intolerant of those who question its right to rule. Nonetheless, analysts consider China’s political system to be neither monolithic nor rigidly hierarchical. Jockeying among leaders and institutions representing different sets of interests is common at every level of the system.” See Understanding China’s Political System, January 31, 2013.

And for good measure there is a CRS report on the legal foundation for public access to government records.  See Access to Government Information In the United States: A Primer, January 16, 2013.

There is no legal foundation that would guarantee public access to CRS reports.  So they have to be obtained through alternate channels.

Spotlight on DoD Special Access Programs

The procedures for establishing, managing and overseeing special access programs (SAPs) in the Department of Defense are spelled out in an updated DoD Instruction that was issued yesterday.  See “Management, Administration, and Oversight of DoD Special Access Programs,” DoD Instruction 5205.11, February 6, 2013.

A special access program is a classified program that employs security measures above and beyond those that would normally be used to protect ordinary (or “collateral”) classified information. Such measures may include special eligibility reviews, polygraph testing, cover, and other controls on information.  Within DoD, SAPs fall into three broad topical categories: intelligence, acquisition, and operations and support.

DoD SAPs have been a focus of controversy in the past, because their intensive secrecy seemed to foster mismanagement.  There were massive, multi-billion dollar failures (e.g., the aborted A-12 naval aircraft program) as well as the occasional eccentricity (e.g., the Timber Wind nuclear powered rocket for anti-ballistic missile missions), both of which triggered Inspector General audits.

Because of those kinds of missteps, “The special access classification system… is now adversely affecting the national security it is intended to support,” the House Armed Services Committee concluded in 1991 (H.Rept. 102-60, p. 101).

But such concerns are expressed less frequently today. This is partly because of changes in Congress, but also because the administration of special access programs at the Pentagon has become less improvisational and freewheeling, and more standardized. (Whether they are also more successful is impossible to say.)

The newly updated DoD Instruction defines the SAP “governance structure,” which consists of a multi-level SAP Oversight Committee (SAPOC), the Senior Review Group (SRG), and the SAP Senior Working Group (SSWG).

The Instruction also sheds light on the hierarchical structure of some SAPs, which are in effect SAPs within SAPs: “DoD SAPs may include subordinate activities identified as, in descending order, compartments, sub-compartments, and projects.”

There is also another SAP hierarchy along an axis of sensitivity. “Acknowledged SAPs,” whose existence may be admitted and made known to others, are the least sensitive.  “Unacknowledged SAPs” (such as Timber Wind once was) are more sensitive and cannot be referenced. Their very existence is a classified fact.  But both of those categories must be reported to Congress.  “Waived SAPs” are the most sensitive of special access programs, and they are exempted by statute (10 USC 119e) from normal congressional notification requirements.  In such cases, only eight senior members of the congressional defense committees may be advised of the program.

DoD’s SAPs are not to be confused with the intelligence community’s Controlled Access Programs (CAPs), which serve a similar function.  An official within the Office of the Under Secretary of Defense (Intelligence) is responsible for “deconflict[ing] the names and abbreviations for DoD’s SAPs and DNI’s CAPs.”

It is noteworthy that the new DoD Instruction on SAP management is a public document.  It rescinds and replaces a 1997 Instruction that was considered too sensitive for public release.

Brennan: “Perhaps” Classification System is Outdated

Among the questions submitted to DCIA-nominee John Brennan by the Senate Intelligence Committee in advance of his much-anticipated confirmation hearing this afternoon was one about classification policy.

A recent report to the President from the Public Interest Declassification Board termed the national security classification system “outdated,” the Committee noted.  Does Mr. Brennan agree?

“I would say that the classification system is perhaps outdated in some respects and the recommendations from the PIDB report warrant further consideration,” he replied (Question 30). “If confirmed as Director, I would review the PIDB’s conclusions and would be glad to get back to the Committee with my views.”

In other words, he seemed to say, one of the cornerstones of intelligence as practiced today may be obsolete, at least “in some respects.” But I have nothing to say about that right now. Let’s talk about it after I am confirmed.

Veterans and Homelessness, and More from CRS

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

Argentina’s Defaulted Sovereign Debt: Dealing with the “Holdouts”, February 6, 2013

Honduras-U.S. Relations, February 5, 2013

Veterans and Homelessness, February 4, 2013

VA Housing: Guaranteed Loans, Direct Loans, and Specially Adapted Housing Grants, February 4, 2013

Agricultural Conservation: A Guide to Programs, February 5, 2013

The National Flood Insurance Program: Status and Remaining Issues for Congress, February 6, 2013

Appropriations Subcommittee Structure: History of Changes from 1920 to 2013, February 5, 2013

U.S. Special Operations Forces (SOF): Background and Issues for Congress, February 6, 2013

Judge Walton Named Presiding Judge of FISA Court

Chief Justice of the United States John Roberts has appointed Judge Reggie B. Walton of the D.C. District Court to serve as Presiding Judge of the Foreign Intelligence Surveillance Court, effective February 22, 2013.

Judge Walton, who has been a member of the FIS Court since May 2007, will replace Presiding Judge John D. Bates, whose term expires on February 21.  Judge Walton’s own term on the Court extends through May 18, 2014.  His appointment as Presiding Judge was confirmed by Sheldon Snook, spokesman for the Court.

The Foreign Intelligence Surveillance Court reviews and authorizes applications for electronic surveillance and physical search under the Foreign Intelligence Surveillance Act.  A roster of the current court membership is here.

The Court’s operation under the recently renewed FISA Amendments Act was discussed in Reauthorization of the FISA Amendments Act, Congressional Research Service, January 2, 2013.

In his regular capacity as district court judge, Judge Walton has presided over a number of celebrated cases including U.S. v. Libby, U.S. v. Roger Clemens, and Hatfill v. John Ashcroft.  Less famously, he also heard Aftergood v. National Reconnaissance Office, a 2005 Freedom of Information Act case in which he ruled in favor of the plaintiff, myself.  That case inaugurated the now-routine public release of unclassified intelligence agency budget justification records.

Mental Disorders Among Iraq Veterans, 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.

Mental Disorders Among OEF/OIF Veterans Using VA Health Care: Facts and Figures, February 4, 2013

Evaluating the “Past Performance” of Federal Contractors: Legal Requirements and Issues, February 4, 2013

Increasing the Social Security Payroll Tax Base: Options and Effects on Tax Burdens
, February 5, 2013

Water Resource Issues in the 113th Congress, January 31, 2013

Upcoming Rules Pursuant to the Patient Protection and Affordable Care Act: The 2012 Unified Agenda, February 1, 2013

The American Taxpayer Relief Act of 2012: Modifications to the Budget Enforcement Procedures in the Budget Control Act, February 4, 2013

United Nations System Funding: Congressional Issues, January 15, 2013

U.S. Foreign Aid to the Palestinians, January 18, 2013

European Union Enlargement, February 4, 2013

Keeping Secrets from Congress

When government information is classified or otherwise withheld from release, the possibility of government accountability to the public is undermined.  But when the executive branch withholds crucial information from Congress, that may pose an even more fundamental challenge to democratic governance.

“The administration has refused to share Presidential Policy Directive 11 (PPD 11) with the Congress,” said Sen. Richard Lugar last year at a hearing of the Senate Foreign Relations Committee which has just been published.  PPD 11 is the Obama Administration document that set the terms of reference for the Nuclear Posture Review Implementation Study, which will dictate the future size and configuration of the U.S. nuclear arsenal.

Sen. Lugar voiced a polite objection to this unilateral act of Obama Administration secrecy:  “I simply would say that our country is strongest and our diplomacy is most effective when nuclear policy is made by deliberate decisions in which both the legislative and executive branches fully participate.”

The withholding of presidential directives from Congress is not a new practice.  A 1992 investigation by the General Accounting Office found that Congress had not been routinely notified of the preparation or issuance of national security directives and that none of the relevant congressional committees “are regularly receiving copies” of such directives.

It is known that presidential directives can be used to establish national policy, to direct the implementation of policy, and to authorize the commitment of government resources. But without access to detailed information about the directives, GAO reported in 1992, “it is impossible to satisfactorily determine how many NSDs [national security directives] issued make and implement U.S. policy and what those policies are.”

On the other hand, unlike many executive orders, presidential directives “do not appear to be issued under statutory authority conferred by Congress and thus do not have the force and effect of law,” GAO said. Certainly such directives cannot limit congressional authority or power to legislate.

Yesterday eleven Senators wrote to President Obama to ask him to direct the release to Congress “the secret legal opinions outlining your authority to authorize the killing of Americans in the course of counterterrorism operations.”

“It is vitally important… for Congress and the American public to have a full understanding of how the executive branch interprets the limits and boundaries of this authority, so that Congress and the public can decide whether this authority has been properly defined, and whether the President’s power to deliberately kill American citizens is subject to appropriate limitations and safeguards,” the Senators wrote.

Later in the day, Mike Isikoff of NBC News obtained a confidential Department of Justice White Paper entitled “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa’ida or An Associated Force.” (See other reporting and commentary from NY Times, WashPost, Politico, Emptywheel and ACLU.)

NBC said the document had been “provided to members of the Senate Intelligence and Judiciary committees in June by administration officials on the condition that it be kept confidential and not discussed publicly.”  This non-disclosure condition, now abrogated, is difficult to understand on national security grounds, but easier to comprehend as an attempt to manage or evade public controversy.

At any rate, the government’s legal argument, such as it is, is now on the public record.  The most important task before Congress is not to plead for release of additional, underlying source documents, but to respond as a legislative body to the Administration’s now-public assertion of its position.  To do nothing is to endorse it.