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U.S. Prisons Are Bursting at the Seams, and More From CRS

The U.S. federal prison population has been growing steadily for decades, and it now exceeds the capacity of the prison system to properly house and maintain it, according to an updated report from the Congressional Research Service on the Bureau of Prisons [BOP].

“The number of inmates under the BOP’s jurisdiction has increased nearly eight-fold (790%) from approximately 24,600 inmates in FY1980 to nearly 219,300 inmates in FY2013. Since FY1980, the federal prison population has increased, on average, by approximately 5,900 inmates each year,” the report said. “The annual growth in the federal prison population has outstripped the BOP’s prison capacity, resulting in overcrowding in the federal prison system.”

The CRS report identified various options for Congress to address the situation, whether by expanding prison capacity or by reducing the prison population through alternatives to incarceration. See The Bureau of Prisons (BOP): Operations and Budget, March 4, 2014.

Other new and updated CRS reports that Congress has withheld from online public access include the following.

Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure, April 10, 2014

Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: A Sketch, April 10, 2014

The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress, April 11, 2014

Former Presidents: Pensions, Office Allowances, and Other Federal Benefits, April 9, 2014

Retirement Benefits for Members of Congress, March 19, 2014

Campaign Contribution Limits: Selected Questions About McCutcheon and Policy Issues for Congress, April 7, 2014

What Is the Farm Bill?, April 7, 2014

The Federal Budget: Overview and Issues for FY2015 and Beyond, April 11, 2014

U.S. Foreign Aid to Israel, April 11, 2014

Security Assistance Reform: “Section 1206″ Background and Issues for Congress, April 4, 2014

Implementation of Chemical Facility Anti-Terrorism Standards (CFATS): Issues for Congress, April 2, 2014

Brazil: Political and Economic Situation and U.S. Relations, March 27, 2014

Bee Health: Background and Issues for Congress, April 9, 2014

The Distribution of Household Income and the Middle Class, March 10, 2014

 

Constitutional Challenges to NSA Collection, and More from CRS

New and updated reports from the Congressional Research Service that Congress has withheld from online public distribution include the following.

Overview of Constitutional Challenges to NSA Collection Activities and Recent Developments, April 1, 2014

Reform of the Foreign Intelligence Surveillance Courts: A Brief Overview, March 31, 2014

The Debate Over Selected Presidential Assistants and Advisors: Appointment, Accountability, and Congressional Oversight, March 31, 2014

Unlawfully Present Aliens, Higher Education, In-State Tuition, and Financial Aid: Legal Analysis, March 28, 2014

Unlawfully Present Aliens, Driver’s Licenses, and Other State-Issued ID: Select Legal Issues, March 28, 2014

Regulation of Clinical Tests: In Vitro Diagnostic (IVD) Devices, Laboratory Developed Tests (LDTs), and Genetic Tests, March 27, 2014

EPA and the Army Corps’ Proposed Rule to Define “Waters of the United States”, March 27, 2014

The Volcker Rule: A Legal Analysis, March 27, 2014

Foreign Assistance to North Korea, April 2, 2014

 

US-Vietnam Nuclear Cooperation, and More from CRS

Noteworthy new and updated reports from the Congressional Research Service that Congress has withheld from online public distribution include the following.

U.S.-Vietnam Nuclear Cooperation Agreement: Issues for Congress, March 24, 2014

Ukraine: Current Issues and U.S. Policy, March 24, 2014

Central Asia: Regional Developments and Implications for U.S. Interests, March 21, 2014

Major U.S. Arms Sales and Grants to Pakistan Since 2001, March 26, 2014

Turkey: Background and U.S. Relations, March 27, 2014

Comparison of Rights in Military Commission Trials and Trials in Federal Criminal Court, March 21, 2014

The Trend in Long-Term Unemployment and Characteristics of Workers Unemployed for Two Years or More, March 24, 2014

Selected Characteristics of Private and Public Sector Workers, March 21, 2014

Legislative Research for Congressional Staff: How to Find Documents and Other Resources, March 25, 2014

Marijuana: Medical and Retail–Selected Legal Issues, March 25, 2014

Reform of the Foreign Intelligence Surveillance Courts: Introducing a Public Advocate, March 21, 2014

Did CIA Violate the Constitution’s Speech or Debate Clause?

The Central Intelligence Agency may have violated the Speech or Debate clause of the U.S. Constitution by performing an unauthorized search of Senate Intelligence Committee computers, according to an analysis by the Congressional Research Service.

The Speech or Debate clause (in Article I, Section 6, Clause 1 of the Constitution) generally immunizes members of Congress from liability for actions performed in the course of their legislative duties.

But it also provides privileged protection for congressional documents against compulsory or involuntary disclosure. CIA may have unconstitutionally violated that privilege.

As detailed by Sen. Dianne Feinstein in a March 11 floor statement, the CIA carried out a search of Committee computers without notice or consent in an attempt to determine whether or how the Committee had obtained unauthorized access to a particular record concerning the CIA’s post-9/11 prisoner interrogation program.

“The search involved not only a search of documents provided by the committee to the CIA but also a search of the stand-alone and walled-off committee network drive containing the committee’s own internal work product and communications,” Sen. Feinstein said. The search took place in a CIA-leased facility where Committee staff were working.

“According to [CIA Director] Brennan, the computer search was conducted in response to indications that some members of the committee staff might already have had access to the internal Panetta review [a CIA document which CIA had not intended to release to the Committee]. The CIA did not ask the committee or its staff if the committee had access to the internal Panetta review or how we obtained it.”

“Instead, the CIA just went and searched the committee’s computers,” Sen. Feinstein said.

Through the Speech or Debate clause, the Constitution “has imposed [limitations] on executive branch attempts to interfere with legislative activities, including Congress’s authority to conduct oversight and investigations,” the new CRS analysis explained.

The Speech or Debate clause has been interpreted variously by two appellate courts, with different implications for the current circumstance, CRS said. The CIA search of Senate Intelligence Committee computers “could arguably be viewed as violating the non-disclosure privilege recognized by the court in Rayburn,” CRS said, referring to a 2007 DC Circuit case involving an FBI search of the House office of Rep. William Jefferson.

However, under a different reading of the Speech or Debate clause from a Ninth Circuit opinion in a case called US v. Renzi, the potential CIA violation “is less clear,” the CRS memorandum cautioned.

See Who’s Overseeing Whom? The CIA, SSCI and the Speech or Debate Clause, CRS Legal Sidebar, March 13, 2014.

In any event, the possible violation by the CIA of the non-disclosure privilege provided by the Speech or Debate clause is not legally actionable at this time, CRS said.  Rather, it “would only come into play in the event of a subsequent legal proceeding.”

On Friday, CIA Director John Brennan sent an email message to CIA employees containing what was understood to be a conciliatory signal towards Congress. “It is appropriate for the Intelligence Committees in the Senate and the House to carry out their oversight responsibilities thoroughly and comprehensively, and CIA needs to do all it can to assist the Committees in that regard,” Director Brennan wrote.

“Regarding the SSCI’s RDI [rendition, detention and interrogation] report, I want to assure you that the entire CIA leadership team is committed to addressing any outstanding questions or requests from SSCI members so that the Committee can complete its work and finalize the report as soon as possible.”

“I expect the Committee will submit at least some portion of the report to the CIA for classification review, and, if that happens, CIA will carry out the review expeditiously,” he wrote in the March 21 email message (published by Politico).

Climate Change Legislation, and More from CRS

New and updated reports from the Congressional Research Service that Congress has withheld from online public distribution include the following.

Climate Change Legislation in the 113th Congress, March 12, 2014

Cars, Trucks, and Climate: EPA Regulation of Greenhouse Gases from Mobile Sources, March 13, 2014

Canadian Oil Sands: Life-Cycle Assessments of Greenhouse Gas Emissions, March 10, 2014

Keystone XL: Greenhouse Gas Emissions Assessments in the Final Environmental Impact Statement (FEIS), March 7, 2014

Nuclear Energy: Overview of Congressional Issues, March 14, 2014

The First Responder Network (FirstNet) and Next-Generation Communications for Public Safety: Issues for Congress, March 12, 2014

Department of Homeland Security Appropriations: FY2014 Overview and Summary, March 11, 2014

NASA Appropriations and Authorizations: A Fact Sheet, March 11, 2014

Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China: Issues for Congress, March 14, 2014

The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues, March 7, 2014

Russian Security Issues and US Interests, and More from CRS

New or updated reports from the Congressional Research Service that Congress has withheld from online public access include the following.

Russian Political, Economic, and Security Issues and U.S. Interests, March 5, 2014

China Naval Modernization: Implications for U.S. Navy Capabilities — Background and Issues for Congress, February 28, 2014

Direct Overt U.S. Aid Appropriations for and Military Reimbursements to Pakistan, FY2002-FY2015, March 6, 2014

Venezuela: Background and U.S. Relations, February 28, 2014

Israel: Background and U.S. Relations, February 28, 2014

Army Drawdown and Restructuring: Background and Issues for Congress, February 28, 2014

Terrorism Risk Insurance: Issue Analysis and Overview of Current Program, March 4, 2014

Federal Minimum Wage, Tax-Transfer Earnings Supplements, and Poverty, February 28, 2014

U.S. Farm Income, February 28, 2014

Prevalence of Mental Illness in the United States: Data Sources and Estimates, February 28, 2014

Early Release for Federal Inmates: Fact Sheet, February 3, 2014

Disclosure of FISA Court Opinions: Legal Issues (CRS)

Could Congress legally compel the executive branch to disclose classified opinions of the Foreign Intelligence Surveillance Court?  Maybe not, a new analysis from the Congressional Research Service concludes.

The CRS report — entitled “Disclosure of FISA Court Opinions: Select Legal Issues” — has little to do with FISA Court opinions in particular. It is an analysis of the overlapping authorities of the three branches of government to classify or disclose national security information.

“The central issue is the extent to which Congress may regulate control over access to national security information, including mandating that the executive branch disclose specific materials — a question not definitively resolved by the courts,” the report says.

This is not a new question, but it is usefully reviewed and summarized by the CRS report.

The issue arises because “The executive branch has argued that the Commander-in-Chief clause bestows the President with independent power to control access to national security information. As such, according to this line of reasoning, Congress’s generally broad ability to require disclosure of agency documents may be constrained when it implicates national security.”

Although no statute regulating classification has ever been ruled unconstitutional, “Congress’s power to compel the release of information held by the executive branch might have limits,” CRS said. “There may be a limited sphere of information that courts will protect from public disclosure,” just as they have exempted properly classified information in FOIA cases, and state secrets in other cases.

The unsurprising bottom line is that “proposals that allow the executive branch to first redact information from FISA opinions before public release appear to be on firm constitutional ground.” However, the CRS report said, “a proposal that mandated all past FISA opinions be released in their entirety — without any redactions by the executive branch — might raise a separation of powers issue.”

All of this may seem academic and politically inapt since there are no active proposals in Congress to compel public release of FISA court opinions that are completely unreviewed or unredacted.

In fact, Congress has arguably been derelict in failing to press more assertively for release of legal rulings of the FISA court, and for disclosure of the general contours of the telephony bulk collection program. Had Congress forcefully required the publication of such information, much of the angst and turmoil of the past nine months that resulted from the Snowden disclosures might have been avoided.

The new CRS report has a couple of other noteworthy omissions.

It does not mention the authority claimed by the congressional intelligence committees to publicly disclose classified information without executive branch approval. (See Section 8 of Senate Resolution 400 of the 94th Congress, 1976.)  Though this authority has never yet been exercised, it remains available in principle.

The report also does not mention some recent instances when Congress has successfully compelled executive branch declassification while also navigating around potential constitutional obstacles.

So, for example, the Senate Intelligence Committee enacted a requirement in the FY 2010 Intelligence Authorization Act (Section 601) that the executive branch must disclose the annual budget request for the National Intelligence Program when the annual budget is submitted. Previously, the intelligence budget request had always been classified information. To save constitutional appearances and assuage the concerns of executive branch lawyers, the Act did include a provision for the President to waive the requirement on national security grounds — but he has never yet done so.

Last week, the Electronic Privacy and Information Center obtained copies of declassified Justice Department reports on the use of pen registers and trap and trace devices under the Foreign Intelligence Surveillance Act from 2000 to 2013.

Drought in the US, and More from CRS

New and updated reports from the Congressional Research Service that Congress has withheld from online public distribution include the following.

Drought in the United States: Causes and Current Understanding, February 26, 2014

The 2014 Quadrennial Defense Review (QDR) and Defense Strategy: Issues for Congress, February 24, 2014

FY2014 National Defense Authorization Act: Selected Military Personnel Issues, February 24, 2014

Navy Littoral Combat Ship (LCS) Program: Background and Issues for Congress, February 25, 2014

Critical Infrastructures: Background, Policy and Implementation, February 21, 2014

EU-U.S. Economic Ties: Framework, Scope, and Magnitude, February 21, 2014

Syria: Overview of the Humanitarian Response, February 25, 2014

Democratic Republic of Congo: Background and U.S. Policy, February 24, 2014

Transatlantic Trade and Investment Partnership (TTIP) Negotiations, February 4, 2014

Free Trade Agreements: Impact on U.S. Trade and Implications for U.S. Trade Policy, February 26, 2014

Options for US Nuclear Weapon Pit Production (CRS)

A major new report from the Congressional Research Service examines the infrastructure for producing the plutonium “pits” that are used in US nuclear weapons, and the feasibility of sharply increasing the rate of pit production.

The CRS report does not deal with whether or why that is a sensible goal, but instead probes deeply into how it could possibly be achieved.

“The Department of Defense states that it needs the Department of Energy, which maintains U.S. nuclear weapons, to produce 50-80 ppy [pits per year] by 2030. While some argue that few if any new pits are needed, at least for decades, this report focuses on options to reach 80 ppy.”

In recent years, U.S. pit production has not exceeded 11 pits per year.

“The current infrastructure cannot produce pits at the capacity DOD requires, and many efforts stretching back to the late 1980s to produce pits have been canceled or have otherwise foundered.”

Based on a close examination of the nation’s nuclear weapons infrastructure, the CRS report presents a dozen options that might satisfy the proposed requirements with minimal new construction, by assigning various functions to existing buildings and facilities. It also notes the structural, political and bureaucratic obstacles to achieving any such outcome.

“Of all the problems facing the nuclear weapons program and nuclear weapons complex over the past several decades, few, if any, have been as vexing as pit production,” the CRS report states.

A copy of the report was obtained by Secrecy News. See U.S. Nuclear Weapon “Pit” Production Options for Congress, February 21, 2014.

U.S. Military Casualty Statistics, and More from CRS

Last week the Congressional Research Service published updated U.S. military casualty statistics for post-9/11 operations in Iraq and Afghanistan through January 2014. There have been 4,410 U.S. military deaths in Operation Iraqi Freedom and 2,299 U.S. military deaths in Operation Enduring Freedom to date.

While overall fatality figures are already made available on Department of Defense websites, the newly updated CRS report presents some more detailed casualty information that was obtained directly from DoD medical experts.

“This report includes statistics on post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), amputations, evacuations, and the demographics of casualties.” See A Guide to U.S. Military Casualty Statistics: Operation New Dawn, Operation Iraqi Freedom, and Operation Enduring Freedom, February 19, 2014.

Another newly updated CRS report considers the vitality of the U.S. manufacturing sector as compared to that of other countries.

“China displaced the United States as the largest manufacturing country in 2010,” CRS noted for the first time, as others have done. (Last year’s edition of the CRS report still held, based on World Bank estimates, that “The United States remained the largest manufacturing country in 2010.”)

“This report is designed to inform the debate over the health of U.S. manufacturing through a series of charts and tables that depict the position of the United States relative to other countries according to various metrics.” See U.S. Manufacturing in International Perspective, February 20, 2014.

A CRS report on the Ukraine that was updated last week has already been overtaken by the tumultuous events of the last few days. But it provides background on recent developments and congressional perspectives on them. See Ukraine: Current Issues and U.S. Policy, February 20, 2014.

And see, relatedly, Armenia, Azerbaijan, and Georgia: Political Developments and Implications for U.S. Interests, February 20, 2014. Also, European Union Enlargement, February 19, 2014.

Updates of other previously issued CRS reports include the following.

Gangs in Central America, February 20, 2014

Employment for Veterans: Trends and Programs, February 20, 2014

Countering Violent Extremism in the United States, February 19, 2014

Another CRS report finds that “Four species of non-indigenous Asian carp are expanding their range in U.S. waterways, resulting in a variety of concerns and problems.” See Asian Carp and the Great Lakes Region, January 23, 2014.