2017 Intelligence Bill Would Constrain Privacy Board

The jurisdiction of the Privacy and Civil Liberties Oversight Board (PCLOB) would be restricted for the second year in a row by the Senate Intelligence Committee version of the FY2017 Intelligence Authorization Act (S.3017). Section 603 of the Act would specifically limit the scope of PCLOB’s attention to the privacy and civil liberties “of United States persons.”

Internal disagreements over the move were highlighted in the Committee report published last week to accompany the text of the bill, which was reported out of Committee on June 5.

“While the PCLOB already focuses primarily on U.S. persons, it is not mandated to do so exclusively,” wrote Senators Martin Heinrich and Mazie K. Hirono in dissenting remarks appended to the report. “Limiting the PCLOB’s mandate to only U.S. persons could create ambiguity about the scope of the PCLOB’s mandate, raising questions in particular about how the PCLOB should proceed in the digital domain, where individuals’ U.S. or non-U.S. status is not always apparent. It is conceivable, for example, that under this restriction, the PCLOB could not have reviewed the NSA’s Section 702 surveillance program, which focuses on the communications of foreigners located outside of the United States, but which is also acknowledged to be incidentally collecting Americans’ communications in the process,” they wrote.

“Over the past three years, the Privacy and Civil Liberties Oversight Board has done outstanding and highly professional work,” wrote Sen. Ron Wyden in his own dissent. “It has examined large, complex surveillance programs and evaluated them in detail, and it has produced public reports and recommendations that are quite comprehensive and useful. Indeed, the Board’s reports on major surveillance programs are the most thorough publicly available documents on this topic. My concern is that by acting to restrict the Board’s purview for the second year in a row, and by making unwarranted criticisms of the Board’s staff in this report, the Intelligence Committee is sending the message that the Board should not do its job too well.”

In support of the provision, the report said that “The Committee believes it is important for the Board to consider the privacy and civil liberties of U.S. Persons first and foremost when conducting its analysis and review of United States counterterrorism efforts.”

But the PCLOB already considers U.S. person privacy “first and foremost.” And the language of the Senate bill does not appear to permit even “secondary” consideration of the privacy of non-U.S. persons. Last year, the FY2016 intelligence authorization bill barred access by the Board to information deemed relevant to covert action.

On June 16, Sen. Patrick Leahy paid tribute to retiring PCLOB chair David Medine on the Senate floor. “[PCLOB] reports and Mr. Medine’s related testimony before the Senate Judiciary Committee have been tremendously beneficial to Congress and the American people in examining government surveillance programs,” he said.

Congress Passes FOIA Improvement Act

The House of Representatives yesterday approved the Freedom of Information Act Improvement Act, which had previously been adopted by the Senate. If signed by President Obama, as expected, it will strengthen several provisions of the FOIA and should enhance disclosure of government records.

The bill “reaffirms the public’s right to know and puts in place several reforms to stop agencies from slowly eroding the effectiveness of using FOIA to exercise that right,” said Rep. Mark Meadows (R-NC).

“The most important reform is the presumption of openness,” according to Rep. Meadows. “Before claiming an exemption [from disclosure under FOIA], agencies must first determine whether they could reasonably foresee an actual harm.”

“The bill would also put a 25-year sunset on exemption 5 of FOIA, the deliberative process exemption,” added Rep. Carolyn Maloney (D-NY). “It would modernize FOIA by requiring the Office of Management and Budget to create a central FOIA Web site for requesters to submit their request, making it more efficient and accessible to the public.”

“This bill would strengthen the independence and the role of the Office of Government Information Services [the FOIA ombudsman]. OGIS has served a critical role since it was formed in response to the last FOIA reform Congress adopted in 2007,” she noted.

The bill does not address structural challenges facing FOIA, which is designed to serve individual requesters, not the public as a whole. Nor does the bill provide any additional resources for implementing FOIA, which currently consumes hundreds of millions of dollars per year with ambiguous results.

“We have a whole process and money and people devoted to FOIA and I just don’t think it’s getting to the heart of what FOIA’s about,” said Meredith Fuchs, former General Counsel of the Consumer Financial Protection Bureau, last March. “I don’t think it’s the real way to keep government accountable.”

Such criticism from a government official would be unremarkable, except that Ms. Fuchs used to be a litigator for FOIA requesters against government agencies (and years ago she contributed an amicus brief for one of my own lawsuits). She spoke at a fascinating session of the Freedom of Information Day 2016 conference at the Newseum that featured former non-governmental FOIA advocates who have gone into government service.

Tom Blanton of the National Security Archive presented a ringing endorsement of the FOIA’s efficacy as a tool for government accountability at a recent Columbia Law School conference on the fiftieth anniversary of FOIA (beginning around the 50′ mark).

Passage of the FOIA Improvement Act was hailed yesterday by Senator Patrick Leahy, the National Security Archive, Openthegovernment.org, the Project on Government Oversight, and the Sunshine in Government Initiative, among other supporters of the measure.

SSCI Bill Adopts Fundamental Classification Review

The Fundamental Classification Guidance Review (FCGR) that was launched by President Obama’s 2009 executive order 13526 would be written into statute by the Senate Select Committee on Intelligence in its version of the FY intelligence authorization act (S. 3017), released this week.

The FCGR has become the primary mechanism for systematically updating agency classification rules and deleting obsolete secrecy requirements. Performed every five years, it entails the review of thousands of individual classification guides. After the first FCGR in 2012, hundreds of such guides were eliminated.

“A reasonable outcome of the review overall, though not necessarily in the case of each program or guide, is to expect a reduction in classification activity across government,” wrote William Cira, acting director of the Information Security Oversight Office, in a March 17 memo to agencies initiating the second FCGR, which is to conclude by June 2017.

The FCGR can advance “our shared goals for greater openness and reduced classification activity while protecting legitimate national security interests,” wrote DNI James Clapper in a March 23 addendum, embracing the FCGR and adding some new requirements to it.

The Senate bill (section 809) does not modify the existing FCGR process, but would enshrine it in statute.

The new bill includes several other reporting requirements that appear uncommonly assertive, if not intrusive. For example, the Committee would expect the Privacy and Civil Liberties Oversight Board to keep it informed of all the Board’s activities, “including any significant anticipated activities.” The Committee would require submission of copies of all memoranda of understanding between U.S. intelligence agencies. And the Committee would require notification of all classified and unclassified presidential directives to intelligence agencies, and their implementation.

In short, the bill would reset the terms of the congressional intelligence oversight relationship, seemingly dispensing with comity and imposing mandatory disclosure to Congress of various categories of records. Executive branch resistance may be anticipated.

For the first time in living memory, the SSCI bill was reported out of Committee on June 6 without a written report to publicly explain and expand upon its provisions. (Update: The Committee report on the bill was published on June 15.) It did, however, include a classified annex.

Congress Isn’t Helping to “Rebuild” CRS

Most public controversy concerning the Congressional Research Service revolves around the question of whether Congress should authorize CRS to make its reports publicly available, or whether unauthorized access to CRS reports is a satisfactory alternative.

But a more urgent question is whether CRS itself will survive as a center of intellectual and analytical vitality. Already many of its most deeply knowledgeable and experienced specialists have been lost to retirement or attrition. And recurring budget shortfalls are taking a toll, say congressional supporters.

“According to CRS, recent funding levels have led to a loss of 13 percent of its purchasing power since 2010. The $1 million increase [proposed in the House version of the FY2017 Legislative Appropriations Act] will not even cover mandatory pay for CRS’ current staff,” wrote Reps. Nita Lowey and Debbie Wasserman Schultz in dissenting views attached to the House Appropriations Committee report on the FY 2017 bill.

“CRS’s [FY2017] budget request sought to rebuild the agency. They asked for two defense policy staff, five health policy staff, three education policy staff, two budget/appropriations staff, four technology policy staff, and two data management and analysis staff. None of those staff would be funded under the current bill, depriving Congress of a non-biased analysis of these critical policy areas,” Reps. Lowey and Wasserman Schultz wrote.

New and updated reports from the Congressional Research Service last week included the following.

OSHA Rule Makes Workplace Injury and Illness Data Publicly Available, CRS Legal Sidebar, May 25, 2016

Status of the Ebola Outbreak in West Africa: Overview and Issues for Congress, May 25, 2016

Navy Lasers, Railgun, and Hypervelocity Projectile: Background and Issues for Congress, updated May 25, 2016

Navy Aegis Ballistic Missile Defense (BMD) Program: Background and Issues for Congress, updated May 26, 2016

Fact Sheet: FY2017 National Defense Authorization Act (NDAA) DOD Reform Proposals, May 25, 2016

Navy Irregular Warfare and Counterterrorism Operations: Background and Issues for Congress, updated May 25, 2016

Taliban Leadership Succession, CRS Insight, May 26, 2016

Who is a “Veteran”? — Basic Eligibility for Veterans’ Benefits, updated May 25, 2016

Military Funeral Honors for Veterans, May 25, 2016

Pre-Publication Review Must Be Timely & Fair, Says HPSCI

Current and former intelligence community employees (as well as some other government employees) are obliged to submit their writings for official review prior to publication in order to screen them for classified information. This is often an onerous, time-consuming and frustrating process. It sometimes appears to authors to be conducted in bad faith.

The House Permanent Select Committee on Intelligence has instructed the Director of National Intelligence to prepare a new, IC-wide pre-publication review policy that will “yield timely, reasoned, and impartial decisions that are subject to appeal.”

In its new report on the FY2017 intelligence authorization act, the Committee said it “is concerned that current and former IC personnel have published written material without completing mandatory pre-publication review procedures or have rejected changes required by the review process, resulting in the publication of classified information.”

“The Committee is also aware of the perception that the pre-publication review process can be unfair, untimely, and unduly onerous and that these burdens may be at least partially responsible for some individuals ‘opting out’ of the mandatory review process.”

The Committee therefore directed the DNI to develop a uniform new policy that clearly sets forth what kinds of materials must be reviewed, with guidance for conducting and completing the review in a timely manner, and with a prompt and transparent appeal process.

The pre-publication review process was critiqued recently by Jack Goldsmith and Oona A. Hathaway in the Washington Post (The Government’s Prepublication Review Process is Broken, December 25, 2015) and in Just Security (The Scope of the Prepublication Review Problem, and What to Do About It, December 30, 2015). I also commented in Just Security (Fixing Pre-Publication Review: What Should Be Done?, January 15, 2016).

The new requirement “to improve the timeliness and fairness of the prepublication review process throughout the IC” was introduced by Rep. Jim Himes (D-CT), a member of the House Intelligence Committee. The FY2017 intelligence authorization act was approved by the full House of Representatives yesterday following floor speeches on May 23.

HASC Favors Classified National Military Strategy

The forthcoming National Military Strategy, unlike previous versions of the Strategy, should be a classified document, the House Armed Services Committee (HASC) said in its markup of the FY2017 defense authorization bill.

Paradoxically, the Committee said that classifying the Strategy would enable increased disclosure of information– to the Committee, not to the public.

“The committee understands the importance of the Department publicly communicating its defense strategy to the American people, Congress, other U.S. Government agencies, and international partners and allies. However, the committee also recognizes that the classified assumptions and analysis underpinning the strategy, as well as the subsequent programming, budgeting, and contingency planning guidance that implement the strategy, are also important oversight tools for the committee and help to frame the annual budget request.” (Section 904)

“The committee believes that the NMS [National Military Strategy] should be re-focused to provide a strategic framework for the development of operational and contingency plans by the combatant commands, and to provide joint force and joint capability development guidance to guide resource investments by the military services.” (Section 905)

“To provide such guidance, the committee believes that the NMS should be a classified document,” the Committee markup said.

The Chairman of the Joint Chiefs of Staff, Gen. Joseph Dunford, recently stated that the next National Military Strategy will in fact be classified, as the House Armed Services Committee desires.

The House Committee did not adopt a DoD proposal for a new exemption from the Freedom of Information Act for certain military tactics, techniques and procedures, as well as rules of engagement, that are unclassified but considered sensitive. The proposed FOIA exemption was excluded from the pending bill without comment.

Recent DoD policy and doctrinal publications of interest to some include the following.

Management of DoD Irregular Warfare (IW) and Security Force Assistance (SFA) Capabilities, DoD Instruction 3000.11, May 3, 2016

DoD Nuclear Weapons Personnel Reliability Assurance, DoD Instruction 5210.42, April 27, 2016

DoD Identity Matching Engine for Security and Analysis (IMESA) Access to Criminal Justice Information (CJI) and Terrorist Screening Databases (TSDB), DoD Instruction 5525.19, May 4, 2016

Department of the Army Polygraph Activities, Army Regulation 195-6, April 21, 2016

Questions for the Record: Arctic Camouflage

The camouflage netting used by the U.S. Army in the Arctic region is obsolete and ineffective, Army officials told Congress in response to a question for the record in a newly published hearing volume.

“The existing Arctic camouflage system has not been upgraded since its inception in the mid-1970s. The Army’s current camouflage system, the Ultra-Lightweight Camouflage Net System (ULCANS) was developed in the late 1990s and only included Woodland and Desert patterns. Due to improvements in technology, these variants are now ineffective against current and emerging advanced sensor threats and are in need of updates,” the officials said.

“The next-generation ULCANS capabilities add three new variants (Arctic, Urban, and Aviation) and upgrade the existing systems (Woodland and Desert). The next-generation ULCANS will provide concealment from visual, near infrared, short-wave infrared through long-wave infrared, ultraviolet, radar, and multi-spectral/hyper-spectral detection.”

“Ultimately,” but not yet, “these systems will provide U.S. forces detection avoidance and sensor defeat capabilities as a low-cost force multiplier,” they said in response to the question submitted by Sen. Dan Sullivan (R-AK). See FY2016 Defense Authorization: Airland, Senate Armed Services Committee, March 19, 2015 (published April 2016), at page 95.

Questions for the record (QFRs) constitute a valuable though unpredictable and often neglected genre. At their best, they serve to elicit new information in response to focused, sometimes unwelcome questions. The House and Senate Armed Services Committees are now among the most interesting practitioners of the form. Senate Intelligence Committee hearing volumes used to be a must-read for their QFRs alone, but that Committee ceased publishing them over a decade ago.

GAO Oversight of Intelligence Community Contractors

“We do not have the full picture of who is working for the Intelligence Community as contractors, or why,” said Senator Thomas Carper at a June 2014 hearing, the record of which was just published last week.

See The Intelligence Community: Keeping Watch Over Its Contractor Workforce, Senate Homeland Security and Governmental Affairs Committee, June 18, 2014, published March 18, 2016.

The hearing record is of particular interest as a reflection of the revived intelligence oversight role assumed by the Government Accountability Office (GAO) following the issuance of 2014 Intelligence Community Directive 114, which authorized GAO access to intelligence information under certain circumstances.

“That new Intelligence Community Directive, I think that did establish a good framework for us to move forward,” said GAO’s Timothy J. DiNapoli at the hearing. “It gave us an approach for a presumption of cooperation. It prevented the categorical denial of information, and access to much of the information on a more formal basis.”

And the Intelligence Community apparently responded to the GAO engagement constructively.

“We thought the responses to the draft report and the recommendations were solid,” Mr. DiNapoli said. “I actually thought that the Director [of National Intelligence] provided cogent responses saying here are some specific steps we are going to take with regard to improving information on the methodology; we are going to ask for that information so we will have a better handle on it.”

For her part, ODNI Principal Deputy Director Stephanie O’Sullivan also testified in support of the GAO role in intelligence oversight.

“The only way to really approach this–and this is what I tell my management organization–is by looking at this as an opportunity to see that which you are missing. It is that old adage of when you are in college and you typed a term paper, you could read that paper 50 times and read right over the typo every time. You just simply cannot see that which is the norm to you.”

“You need outside eyes to help you find problems,” Ms. O’Sullivan said, “and that is about the basic credo of IGs and GAO, to make the function of government more efficient and effective.”

A series of Questions for the Record appended to the newly published hearing volume addressed the issue of “Why have the number of contractors and the cost of contracts been classified?”

Bill Would Authorize Release of CRS Reports

A bill to make Congressional Research Service reports available to the public through authorized rather than unauthorized channels was introduced in Congress yesterday.

The bill was sponsored in the Senate (S. 2639) by Sen. Patrick Leahy (D-VT) and Sen.  John McCain (R-AZ) and in the House (H.R. 4702) by Rep. Leonard Lance (R-NJ) and Rep. Mike Quigley (D-IL).

While the support of these congressional sponsors of both parties is promising, the proposal to provide authorized public access to non-confidential CRS publications is not assured of passage.

A press release from Sen. Leahy’s office yesterday noted gamely that “McCain and Leahy have partnered for more than a decade in pressing for this change.”

Still, conditions for approval of the measure seem more favorable today than for many years past, thanks largely to a broad coalition of support mobilized by Daniel Schuman of Demand Progress and Kevin Kosar of the R Street Institute, themselves former CRS employees.

In the meantime, the latest reports from CRS that are not yet subject to authorized public disclosure include the following.

Lead in Flint, Michigan’s Drinking Water: Federal Regulatory Role, CRS Insight, updated March 2, 2016

Authorizing New Additions to Memorials in the District of Columbia: Issues for Consideration, CRS Insight, March 2, 2016

Cybersecurity: Education, Training, and R&D Authoritative Reports and Resources, March 3, 2016

Cybersecurity: Overview Reports and Links to Government, News, and Related Resources, March 2, 2016

Unfunded Mandates Reform Act: History, Impact, and Issues, March 2, 2016

Child Support: An Overview of Census Bureau Data on Recipients, March 1, 2016

The Proposed U.S. Foreign Assistance Initiative “Peace Colombia”, CRS Insight, March 3, 2016

Latin America and the Caribbean: Fact Sheet on Leaders and Elections, March 1, 2016

Marine Corps Amphibious Combat Vehicle (ACV) and Marine Personnel Carrier (MPC): Background and Issues for Congress, February 26, 2016

International Trade and Finance: Key Policy Issues for the 114th Congress, 2nd Session, February 29, 2016

Former Intelligence Employees Must Report Foreign Jobs

Under a requirement recently enacted by Congress, intelligence agency employees who hold clearances for Sensitive Compartmented Information (SCI) must report any employment with a foreign government entity for up to two years after leaving their US government job.

An internal US Air Force memorandum implementing the new requirement for Air Force intelligence personnel was released under the Freedom of Information Act yesterday.

See Reporting Certain Post-Government Employment by Holders of Sensitive Compartmented Information (SCI) Accesses, Air Force Guidance Memorandum 2015-14-04-O, 5 November 2015.

SCI is classified information that is derived from intelligence sources or methods.

The reporting requirement concerning foreign government employment was adopted by Congress in the FY 2015 intelligence authorization act (section 305) and was enacted into law as 50 U.S.C. 3073a.

It is unclear from the public record whether any specific incident or circumstance prompted the new reporting requirement.