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

Inspector General Blasts NRO Secrecy Practices

The National Reconnaissance Office (NRO), the agency that builds and operates U.S. intelligence satellites, frequently makes mistakes when it classifies national security information, according to an assessment performed last year by the NRO Inspector General.

“From the classified documents we reviewed at NRO headquarters, 114 of 134 documents contained classification errors,” the IG report said.

Agency classification officials “lack sufficient knowledge of classification principles and procedures necessary to perform their duties,” the NRO Inspector General found. “One OCA [original classification authority] had almost no knowledge of his responsibilities.”

“Because of the lack of full compliance in multiple areas, the NRO is susceptible to the risk of persistent misclassification,” the IG said.

The IG report was performed in response to the “Reducing Over-Classification Act of 2010,” which required the Inspectors General of all agencies that classify information to evaluate their classification programs. A copy of the report was obtained under the Freedom of Information Act by the GovernmentAttic.org web site.

Most of the classification errors discovered by the Inspector General are administrative rather than substantive. Like other IG evaluations conducted under the Reducing Over-Classification Act, the NRO Inspector General review does not allow for the possibility that an agency could be in full compliance with classification rules and nevertheless be overclassifying information.

Instead, the IGs have focused on errors in marking documents, failures to specify proper authorities or to cite responsible officials, and similar defects in conformity with established rules.

Still, these are not necessarily trivial failures. Between 2005 and 2012, for example, NRO improperly exempted records from automatic declassification at 25 years when it had no authority to do so, the IG said.

The Inspector General reviewed NRO classification guides (which dictate the classification levels of particular items of information) “and we found that all but one of the 62 guides had classification errors.”

Puzzlingly, the Inspector General also reported that NRO “has not conducted timely reviews [of] its security classification guides” and that “three of the 62 SCGs had not been reviewed within five years.”

This finding appears to be inconsistent with a 2012 NRO report which affirmed that all of its security classification guides — of which there were 67, not 62 — had been reviewed in response to the Fundamental Classification Guidance Review. An explanation of the inconsistency was not immediately available.

NRO officials “non-concurred” with the findings and conclusions of the Inspector General report.

The report contains “numerous sensationalized, exaggerated and misleading statements,” wrote A. Jamieson Burnett, the director of the NRO Office of Security and Counterintelligence.

Other previously disclosed IG reports issued in response to the Reducing Over-Classification Act addressed classification programs in the Department of Defense, Department of Justice, Department of Homeland Security, and the Environmental Protection Administration.

Perhaps the biggest incentive for reducing overclassification is the negative impact that unnecessary secrecy can have on government operations.

“A major impediment to operating with international partners is the U.S. tendency to classify information, complicating the crucial flow of important data to our allies as well as within and among our own Services,” according to a new article in Joint Force Quarterly, which is published by National Defense University for the Chairman of the Joint Chiefs of Staff.

“The U.S. military needs to [...] try harder to communicate in the unclassified domain,” wrote Jeffrey M. Shaw in his article “Putting ‘A Cooperative Strategy for 21st Century Sea Power’ to Work,” Joint Force Quarterly, January 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.