Russia’s Open Skies Flights Prompt DIA “Concern”

Ideally, arms control agreements that are well-conceived and faithfully implemented will foster international stability and build confidence between nations. But things don’t always work out that way, and arms control itself can become a cause for suspicion and conflict.

“Can you say anything about how Russia, in this venue, is using their Open Skies flights over the United States?,” Rep. Mike Rogers (R-AL) asked Defense Intelligence Agency (DIA) director Lt.Gen. Vincent R. Stewart at a February 3 hearing of the House Armed Services Committee (at page 13).

“The Open Skies construct was designed for a different era,” Lt.Gen. Stewart replied. “I am very concerned about how it is applied today. And I would love to talk about that in closed hearing,” he added mysteriously.

The Open Skies Treaty, to which the United States and Russia are parties, entered into force in 2002. It allows member states to conduct overflights of other members’ territories in order to monitor their military forces and activities.

It is unclear exactly what prompted DIA director Stewart’s concern about Russian overflights of the United States, and his perspective does not appear to be shared by some other senior Defense Department officials.

The most recent State Department annual report on arms control compliance identified several obstacles to U.S. overflights of Russia that it said were objectionable. The only issue relating to Russian overflights of the U.S. was that “Russia continued not to provide first generation duplicate negative film copies of imagery collected during Open Skies flights over the United States.”

But there seems to be more to the concerns about Russian overflights than that.

“Is it true that the Commander of U.S. European Command non-concurred last year when OSD-P asked for his input on approving Russian Federation requests under the Open Skies treaty?,” Rep. Rogers asked at another hearing on February 26 (at page 72).

That “was part of the deliberative process and was used to inform DOD and U.S. Government decision-making,” replied Brian McKeon of the Department of Defense. “As we worked with other U.S. departments and agencies, we determined that the specific concerns would be ameliorated by some important, separate components of the policy.” Both the specific concerns and the steps to ameliorate them were described in a classified letter that is not publicly available.

“USSTRATCOM’s capabilities are not significantly impacted by Open Skies overflights today, any more than we have been since the Treaty was implemented in 2002,” said Admiral Cecil D. Haney, Commander of U.S. Strategic Command.

“While the U.S. works with Russia on a number of broader concerns, Open Skies continues to serve as a fundamental transparency and confidence building measure in support of the Euro-Atlantic alliance,” Admiral Haney said.

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Relatedly, on the subject of arms control compliance, the Congressional Research Service updated its report on Russian Compliance with the Intermediate Range Nuclear Forces (INF) Treaty: Background and Issues for Congress, October 13, 2015.

Other new and updated CRS reports that have been issued in the past week include the following.

Appropriations Subcommittee Structure: History of Changes from 1920 to 2015, updated October 13, 2015

Congressional Action on FY2016 Appropriations Measures, updated October 9, 2015

EPA Policies Concerning Integrated Planning and Affordability of Water Infrastructure, October 8, 2015

Issues in a Tax Reform Limited to Corporations and Businesses, October 8, 2015

Advance Appropriations, Forward Funding, and Advance Funding: Concepts, Practice, and Budget Process Considerations, updated October 8, 2015

Department of Labor’s 2015 Proposed Fiduciary Rule: Background and Issues, October 8, 2015

U.S.-South Korea Relations, updated October 8, 2015

Armed Conflict in Syria: Overview and U.S. Response, updated October 9, 2015

Haranguing in the Supreme Court, and More from CRS

If protesters are arrested for disrupting the proceedings of the U.S. Supreme Court through angry speech, is that a violation of their First Amendment rights? The question was analyzed by the Congressional Research Service. See Haranguing in the Court, CRS Legal Sidebar, October 6, 2015.

Other new and updated products of the Congressional Research Service issued in the past week include the following.

FinCEN’s Money Laudering Death Penalty Temporarily Blocked, CRS Legal Sidebar, October 6, 2015

The Internet Tax Freedom Act: In Brief, updated October 5, 2015

Emergency Relief for Disaster-Damaged Roads and Transit Systems: In Brief, updated October 2, 2015

Changes in the Arctic: Background and Issues for Congress, updated October 2, 2015

2015 Leaders’ Summit on U.N. Peacekeeping, CRS Insight, October 5, 2015

Pope Francis in Cuba, CRS Insight, October 2, 2015

Turkey: Background and U.S. Relations, updated October 5, 2015

Fact Sheet: Selected Highlights of the FY2016 National Defense Authorization Act (H.R. 1735 and S. 1376), updated October 2, 2015

Conventional Prompt Global Strike and Long-Range Ballistic Missiles: Background and Issues, updated October 2, 2015

Vetoes of Defense Authorization Bills, and More from CRS

If President Obama vetoes the pending FY2016 defense authorization bill, “it would mark the fifth time since 1961, when Congress enacted the first annual defense authorization bill, that a president has vetoed that measure,” according to the Congressional Research Service. See Presidential Vetoes of Annual Defense Authorization Bills, CRS Insight, October 1, 2015.

New and updated publications from the Congressional Research Service that were issued in the past week include the following.

Overview of the FY2016 Continuing Resolution (H.R. 719), October 1, 2015

Public Health Service Agencies: Overview and Funding (FY2010-FY2016), updated October 2, 2015

DHS Appropriations FY2016: Security, Enforcement and Investigations, October 2, 2015

Poland and Its Relations with the United States: In Brief, September 30, 2015

State, Foreign Operations, and Related Programs: FY2016 Budget and Appropriations, updated October 1, 2015

U.S. Agricultural Trade with Cuba: Current Limitations and Future Prospects, updated October 1, 2015

How Treasury Issues Debt, updated October 1, 2015

Disconnected Youth: A Look at 16 to 24 Year Olds Who Are Not Working or In School, updated October 1, 2015

Kuwait: Governance, Security, and U.S. Policy, updated October 1, 2015

Yemen: Civil War and Regional Intervention, updated October 2, 2015

High School Debates on Surveillance Informed by CRS

The Congressional Research Service has produced a bibliography on domestic surveillance to support this year’s national high school debate program which is devoted to that subject.

“Resolved: The United States Federal Government Should Substantially Curtail Its Domestic Surveillance” is the topic that was selected for the 2015-2016 high school debate by representatives of the National Federation of State High School Associations.

The Librarian of Congress is directed by law (44 USC 1333) to “prepare compilations of pertinent excerpts, bibliographical references, and other appropriate materials” relating to the annual high school and college debates. So CRS (a component of the Library of Congress) has fulfilled that requirement, providing citations to contrasting perspectives on surveillance in news stories, books, law review articles, websites, and non-governmental organizations.

“The conflict between national security objectives and privacy became a popular topic for debate when it was disclosed in June 2013, by former defense contractor Edward Snowden, that the National Security Agency was engaging in extensive surveillance inside the United States in order to fight crime and to reduce the threat of terrorism,” according to the CRS introduction to the document.

“The magnitude of the disclosure shocked many people, including Members of Congress, who were unaware of the extent of the surveillance. Many civil rights advocates viewed the surveillance as an assault on liberty, while law enforcement and national security officials saw the programs as essential weapons in the war on terror, the fight against nuclear weapons proliferation, and the general protection of U.S. national security.”

“In selecting items for inclusion in this bibliography, CRS has sampled a wide spectrum of opinions reflected in the current literature on this issue,” CRS director Mary B. Mazanec wrote in a Foreword.

“No preference for any policy is indicated by the selection or positioning of articles, books, or websites cited, nor is CRS disapproval of any policy, position or article to be inferred from its omission,” she wrote.

See Compilation of References on Domestic Surveillance for National High School Debate, 2015-2016, Congressional Research Service, August 2015.

The CRS document is unobjectionable, but it has some peculiarities.

A prominent typographical error on the title pages repeatedly misstates the debate topic to read “The United States federal government should substantially curtain [sic] its domestic surveillance.”

The bibliography includes the titles of six surveillance-related reports that were produced by the Congressional Research Service itself. CRS does not acknowledge that each of these reports has been posted online and may be easily obtained. Instead, the bibliography disingenuously advises that they “are available by way of a request to your Member of Congress.” The notion that hundreds or thousands of high school students are actually going to contact their congressional offices for copies of CRS reports that can be instantly located by an online search, or that the offices would promptly and reliably provide them, is hard to credit.

The subject of domestic surveillance was chosen for the annual national high school debate program over other proposed topics including income inequality, criminal justice reform, and government authority over Indian country.

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New and updated CRS reports that were issued over the past week include the following.

Poverty in the United States in 2014: In Brief, September 30, 2015

EPA’s New Ozone Standards: A Few Thoughts, CRS Insight, September 29, 2015

Emerging Markets: Is Slower Growth Temporary?, CRS Insight, September 29, 2015

Zivotofsky v. Kerry: The Jerusalem Passport Case and Its Potential Implications for Congress’s Foreign Affairs Powers, updated September 28, 2015

Abortion, Hospital Admitting Privileges, and Whole Woman’s Health v. Cole, September 25, 2015

The Pregnancy Discrimination Act and the Supreme Court: A Legal Analysis of Young v. United Parcel Service, September 25, 2015

The Lord’s Resistance Army: The U.S. Response, updated September 28, 2015

Mexico’s Oil and Gas Sector: Background, Reform Efforts, and Implications for the United States, updated September 28, 2015

Direct Overt U.S. Aid Appropriations for and Military Reimbursements to Pakistan, FY2002-FY2016, updated September 30, 2015

Puerto Rico’s Current Fiscal Challenges, updated September 25, 2015

Can Creditors Enforce Terrorism Judgments Against Cuba?, CRS Legal Sidebar, September 29, 2015

Iran’s Foreign Policy, updated September 25, 2015

Navy Irregular Warfare and Counterterrorism Operations: Background and Issues for Congress, updated September 25, 2015

Holding Contractors Accountable, and More from CRS

When government contractors fail to fulfill a contract or engage in some form of misconduct, there are various ways to hold them legally accountable, a new reportfrom the Congressional Research Service explains.

“This report provides an overview of selected legal mechanisms that the federal government could rely upon in holding contractors accountable for deficiencies in their performance under the contract, or for other misconduct. Not all of these mechanisms involve ‘penalties’ as that term is generally understood. In some cases, the controlling legal authority expressly provides that the government may take certain actions only to protect the government’s interest, and ‘not for purposes of punishment.’ However, in all cases, the government’s action represents a consequence of and response to the contractor’s delinquencies, and could be perceived as punitive by the contractor or other parties.”

“The report does not address prosecution of government contractors, although it is important to note that contractors could be subject to criminal penalties for misconduct related to contract performance or otherwise.”

“Also, the discussion of the government’s potential mechanisms for holding contractors accountable in this report should not be taken to mean that contractors and contractor employees are more likely to fail to perform or engage in misconduct than government employees. That is a separate debate, outside the scope of this report,” CRS said. See Legal Mechanisms Whereby the Government Can Hold Contractors Accountable, September 23, 2015.

Other new and updated reports from the Congressional Research Service that were published last week — but not publicly released — include the following.

The FY2016 Continuing Resolution (H.J. Res 61)CRS Insight, September 23, 2015

Economic Effects of the FY2014 ShutdownCRS Insight, September 24, 2015

Federal Support for Reproductive Health Services: Frequently Asked Questions, updated September 25, 2015

Congressional Redistricting: Legal and Constitutional Issues, September 22, 2015

DOT’s Federal Pipeline Safety Program: Background and Key Issues for Congress, September 22, 2015

Copyright Licensing in Music Distribution, Reproduction, and Public Performance, updated September 22, 2015

The Help America Vote Act and Election Administration: Overview and Issues, updated September 22, 2015

Legal Issues with Federal Labeling of Genetically Engineered Food: In Brief, updated September 22, 2015

U.S. Trade in Services: Trends and Policy Issues, updated September 22, 2015

A Framework for Understanding Health Insurance ConsolidationsCRS Insight, September 22, 2015

Navy Littoral Combat Ship (LCS)/Frigate Program: Background and Issues for Congress, updated September 23, 2015

Navy Virginia (SSN-774) Class Attack Submarine Procurement: Background and Issues for Congress, updated September 23, 2015

Navy Ohio Replacement (SSBN[X]) Ballistic Missile Submarine Program: Background and Issues for Congress, updated September 23, 2015

Navy Ford (CVN-78) Class Aircraft Carrier Program: Background and Issues for Congress, updated September 22, 2015

Navy DDG-51 and DDG-1000 Destroyer Programs: Background and Issues for Congress, updated September 22, 2015

Navy LX(R) Amphibious Ship Program: Background and Issues for Congress, updated September 22, 2015

Navy Force Structure and Shipbuilding Plans: Background and Issues for Congress, updated September 21, 2015

A Shift in the International Security Environment: Potential Implications for Defense — Issues for Congress, updated September 24, 2015

The Chinese Military, and More from CRS

New and updated publications from the Congressional Research Service obtained by Secrecy News include the following.

The Chinese Military: Overview and Issues for Congress, September 18, 2015

Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China: Issues for Congress, updated September 18, 2015

China Naval Modernization: Implications for U.S. Navy Capabilities — Background and Issues for Congress, updated September 15, 2015

Guatemala: President Pérez Resigns; Runoff Presidential Election on October 25, CRS Insight, September 17, 2015

Russian Deployments in Syria Complicate U.S. Policy, CRS Insight, September 18, 2015

Extreme Weather Events and Government Compensation, CRS Legal Sidebar, September 22, 2015

Third Circuit Affirms the FTC’s Authority to Regulate Data Security as an Unfair Trade Practice, CRS Legal Sidebar, September 21, 2015

Credit Union’s Plan to Serve the Marijuana Industry Goes Up in Smoke, CRS Legal Sidebar, September 21, 2015

Is There a Gap in Insider Trading Coverage for Hacking?, CRS Legal Sidebar, September 18, 2015

Vulnerable Youth: Employment and Job Training Programs, September 16, 2015

Insurance Regulation: Background, Overview, and Legislation in the 114th Congress, September 16, 2015

Copyright Law Restrictions on a Consumer’s Right to Repair Cars and Tractors, CRS Legal Sidebar, September 18, 2015

The Fifth Amendment in Congressional Investigations, and More from CRS

How should a congressional committee respond when a witness before the Committee asserts his Fifth Amendment privilege against self-incrimination, and refuses to provide the testimony or documents sought by investigators?

The options available to the Committee were discussed by the Congressional Research Service in a new memorandum. See The Fifth Amendment in Congressional Investigations, CRS Legal Sidebar, September 11, 2015.

Other new and updated CRS publications include the following.

Election in Greece, CRS Insight, September 14, 2015

OSHA Proposed Rule Contradicts D.C. Circuit Decision, CRS Legal Sidebar, September 14, 2015

Confederate License Plates are Government Speech, Rules Supreme Court, CRS Legal Sidebar, September 14, 2015

“Just Mayo” Just Isn’t, Warns FDA, CRS Legal Sidebar, September 14, 2015

District Court Holds House has Standing to Pursue Portions of ACA Lawsuit, CRS Legal Sidebar, September 11, 2015

Jim Thorpe’s Tribe and Sons Continue Fight against the Borough of Jim Thorpe, Pennsylvania, CRS Legal Sidebar, September 11, 2015

The FY2014 Government Shutdown: Economic Effects, updated September 11, 2015

The Debt Limit Since 2011, updated September 11, 2015

Surface Transportation Program Reauthorization Issues for Congress, updated September 11, 2015

Procedures for Congressional Action in Relation to a Nuclear Agreement with Iran: In Brief, updated September 11, 2015

Abortion: Judicial History and Legislative Response, updated September 11, 2015

The United Arab Emirates (UAE): Issues for U.S. Policy, updated September 14, 2015

Drones, Pope Francis, Encryption, and More from CRS

A new report from the Congressional Research Service looks at the commercial prospects for the emerging drone industry.

“It has been estimated that, over the next 10 years, worldwide production of UAS for all types of applications could rise from $4 billion annually to $14 billion. However, the lack of a regulatory framework, which has delayed commercial deployment, may slow development of a domestic UAS manufacturing industry,” the report said. See Unmanned Aircraft Systems (UAS): Commercial Outlook for a New Industry, September 9, 2015.

In advance of the September 2227 visit to the United States by Pope Francis, another new CRS report “provides Members of Congress with background information on Pope Francis and a summary of a few selected global issues of congressional interest that have figured prominently on his agenda.” See Pope Francis and Selected Global Issues: Background for Papal Address to Congress, September 8, 2015.

Another new report from CRS on encryption and law enforcement presents “an overview of the perennial issue involving technology outpacing law enforcement and discusses how policy makers and law enforcement officials have dealt with this issue in the past.” See Encryption and Evolving Technology: Implications for U.S. Law Enforcement, September 8, 2015.

Other new and newly updated publications from the Congressional Research Service include the following.

Syrian Refugee Admissions to the United StatesCRS Insight, September 10, 2015

An Analysis of Efforts to Double Federal Funding for Physical Sciences and Engineering Research, updated September 8, 2015

Cybersecurity: Data, Statistics, and Glossaries, updated September 8, 2015

Cybersecurity: Legislation, Hearings, and Executive Branch Documents, updated September 8, 2015

The EMV Chip Card Transition: Background, Status, and Issues for Congress, updated September 8, 2015

Cyprus: Reunification Proving Elusive, udpated September 10, 2015

Saudi Arabia: Background and U.S. Relations, updated September 8, 2015

Jordan: Background and U.S. Relations, updated September 10, 2015

Iran Nuclear Agreement, updated September 9, 2015

Statutory Qualifications for Executive Branch Positions, updated September 9, 2015

Federal Reserve: Emergency Lending, September 8, 2015


Modifying Arms Control Agreements, and More from CRS

Although it is theoretically possible to do so, the Senate has never imposed changes to an arms control treaty as a condition of ratification, according to a new Congressional Research Service report.

“The Senate has never conditioned consent to an arms control treaty’s ratification on changes in the terms of the agreement,” CRS said.

“In most cases, the conditions adopted during the Senate review were attached to resolutions of ratification and affected only U.S. activities, programs, and policies.” See Arms Control Ratification: Opportunities for Modifying Agreements, CRS Insights, September 2, 2015.

Another new CRS publication looks at the history of renegotiating arms control agreements, in the context of congressional debate over the pending Iran nuclear agreement.

“In the past 60 years, the United States has signed around 20 arms control agreements that affected U.S. weapons programs or military activities. In this period, the Senate has voted against giving its advice and consent to ratification of a treaty only once,” i.e. in the case of the Comprehensive Test Ban Treaty.

“It has, on three other occasions, not voted on treaties when it likely would have rejected the treaty. In only one of these three cases did the United States return to the negotiating table and modify the agreement to address the Senate’s concerns.”

In the latter case, which involved the Threshold Test Ban Treaty, “the new negotiations delayed [the Treaty’s] entry into force by nearly 15 years.” See Renegotiating Arms Control Agreements: A Brief Review, CRS Insights, September 2, 2015.

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Three emerging technologies for defense of U.S. Navy surface ships are reviewed in a new report from the Congressional Research Service: shipboard lasers, the electromagnetic railgun, and hypervelocity projectile weapons.

“Any one of these new weapon technologies, if successfully developed and deployed, might be regarded as a ‘game changer’ for defending Navy surface ships against enemy missiles.”

“If two or three of them are successfully developed and deployed, the result might be considered not just a game changer, but a revolution,” the CRS report said.

“Rarely has the Navy had so many potential new types of surface-ship missile-defense weapons simultaneously available for development and potential deployment.”

However, any or all of the technologies might still prove to be a dead-end, and each still faces significant development hurdles. “Overcoming these challenges will likely require years of additional development work, and ultimate success in overcoming them is not guaranteed.”

The policy decision facing Congress today is therefore which if any of these approaches merits funding, and at what level. See Navy Lasers, Railgun, and Hypervelocity Projectile: Background and Issues for Congress, September 2, 2015.

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The United States currently offers safe haven, or “temporary protected status,” to 5,000 Syrian nationals who have sought refuge from the conflict in that country. Altogether, the U.S. offers similar temporary protection to over 300,000 foreign nationals from 12 countries, a newly updated CRS report said. See Temporary Protected Status: Current Immigration Policy and Issues, updated September 2, 2015.

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Other new or updated reports from the Congressional Research Service include the following.

Long Range Strike Bomber Begins to Emerge, CRS Insights, September 2, 2015

What Does the Latest Court Ruling on NSA Telephone Metadata Program Mean?, CRS Legal Sidebar, September 3, 2015

Is Global Growth Slowing?, CRS Insights, September 2, 2015

Essential Air Service (EAS), September 3, 2015

Across-the-Board Rescissions in Appropriations Acts: Overview and Recent Practices, updated September 2, 2015

Coast Guard Polar Icebreaker Modernization: Background and Issues for Congress, updated September 2, 2015


How Many Drones for DoD?, and More from CRS

The Department of Defense reportedly expects to increase its use of unmanned aerial systems (“drones”) by nearly 50% in the next few years. At the same time, however, the rate of DoD’s procurement of drones is projected to decline sharply from FY2016-2020.

The Congressional Research Service takes note of the seeming contradiction and proposes several possible explanations to resolve it. See How Many UAVs for DoD?, CRS Insights, August 27, 2015.

Other new and updated CRS publications that became public last week include the following.

Policy Implications of the Internet of Things, CRS Insights, August 25, 2015

Health Insurance: Small is the New Large, CRS Insights, August 26, 2015

Gold King Mine Spill May Renew Interest in “Good Samaritan” Legislation, CRS Insights, August 27, 2015

Financial Regulatory Improvement Act Included in Senate Appropriations Bill, CRS Insights, August 27, 2015

Terrorism Victims Sue to Enjoin Sanctions Relief under the Iran Nuclear Agreement, CRS Legal Sidebar, August 27, 2015

District of Columbia: A Brief Review of Provisions in District of Columbia Appropriations Acts Restricting the Funding of Abortion Services, updated August 27, 2015

Drug Testing and Crime-Related Restrictions in TANF, SNAP, and Housing Assistance, updated August 28, 2015

The Patient Protection and Affordable Care Act’s Essential Health Benefits (EHB), August 27, 2015

Navy Ship Names: Background For Congress, updated August 26, 2015