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.

Coming to Terms with Secret Law

The topic of “secret law” is probed at great length in a new law review paper, which substantiates the concept and suggests a set of principles for addressing it. See “Coming to Terms with Secret Law” by Dakota S. Rudesill, to be published in the Harvard National Security Journal.

Secret law is defined here as “legal authorities that require compliance [but] that are classified or otherwise withheld from the public.”

The paper provides extensive citations to relevant source material (including a few references to Secrecy News), thoughtful consideration of arguments for and against the status quo, and a novel compilation of congressional reports that include classified addenda. (h/t Lawfare)

House Poised to Pass FOIA Amendments

The House of Representatives is expected to approve a new package of amendments to the Freedom of Information Act this week, in a bill known as the FOIA Oversight and Implementation Act of 2015.

The sponsors of the bill said it “would strengthen the Freedom of Information Act (FOIA) to increase transparency and accountability in government, and improve access to government records for citizens. It amends FOIA to provide for more disclosure of records, through both proactive disclosure and limitations on the use of exemptions. [It] also encourages enhanced agency compliance with statutory requirements and improves the FOIA process for both agencies and requesters.”

The bill would codify a presumption of openness, limit the application of the exemption for deliberative records, facilitate electronic submission of FOIA requests, strengthen the Office of Government Information Services (the FOIA ombudsman), mandate Inspector General reviews of FOIA processing, and several other steps. Detailed justification for the bill is provided in a January 7 report from the House Committee on Oversight and Government Reform.

The bill was subsequently modified by the House Intelligence Committee to affirm that its provisions would not require the disclosure of properly classified information or of information that “would adversely affect intelligence sources and methods” that are protected. The term “adversely affect” is not defined but is clearly intended to limit disclosure.

Truth be told, the Freedom of Information Act is a strange law that seems engineered to create an unresolvable tension if not a complete stalemate.

The FOIA empowers individual members of the public (including me and you) to impose a legally binding obligation on a government agency. But while there are no limits on the number or type of requests that a requester may submit at no cost, agencies are nominally supposed to accommodate the demand within a fixed period and with fixed resources. And though it only takes minutes to submit a request, the time required by an agency to fulfill even a simple request is much longer. A sophisticated systems analysis is not needed to anticipate the growth of the backlogs that have in fact developed.

In a further conundrum, those agencies that are more responsive to the FOIA process thereby tend to generate more demand. There is little point in submitting a FOIA request to the Defense Intelligence Agency, to pick one example, because they won’t produce a substantive response in this decade. But other agencies that do respond faithfully are rewarded– with more requests.

The best way to untangle and realign these conflicting imperatives is not clear. More proactive disclosure of information might help, or it might simply shift the burden to more specialized and challenging requests. But just encouraging and making it easier to file FOIA requests is probably not the solution.

DoD Gets Go-Ahead to Counter Islamic State Messaging

There are “substantial gaps” in the ability of the Department of Defense to counter Islamic State propaganda and messaging, the Commander of U.S. Special Operations Command (SOCOM) informed Congress earlier this year.

But now Congress has moved to narrow some of those gaps.

Until recently, the Pentagon’s authority to act in this area had been deliberately curtailed by Congress in order to preserve a civilian lead role for the State Department’s public diplomacy program.

“Congress has expressed concern with DOD engaging violent extremist propaganda on the Internet, except in limited ways,” wrote General Joseph L. Votel, the SOCOM Commander, in newly published responses to questions for the record from a March 18, 2015 hearing of the House Armed Services Committee (at page 69).

“They [Congress] tend to view… efforts to influence civilians outside an area of conflict as Public Diplomacy, the responsibility of the Department of State or Broadcasting Board of Governors.”

By contrast, “We [at US Special Operations Command] believe there is a complementary role for the Department of Defense in this space which acknowledges the need for a civilian lead, but allows DOD to pursue appropriate missions, such as counter-recruitment and reducing the flow of foreign fighters,” he wrote.

General Votel suggested that “An explicit directive from Congress outlining the necessity of DOD to engage in this space would greatly enhance our ability to respond.”

Now he has it.

Without much fanfare, something like the directive from Congress that General Votel requested was included in the FY2016 defense authorization bill that was signed into law by President Obama on November 25:

“The Secretary of Defense should develop creative and agile concepts, technologies, and strategies across all available media to most effectively reach target audiences, to counter and degrade the ability of adversaries and potential adversaries to persuade, inspire, and recruit inside areas of hostilities or in other areas in direct support of the objectives of commanders.”

That statement was incorporated in Section 1056 of the 2016 Defense Authorization Act, which also directed DOD to perform a series of technology demonstrations to advance its ability “to shape the informational environment.”

Even with the requested authority, however, DOD is poorly equipped to respond to Islamic State propaganda online, General Votel told the House Armed Services Committee.

“Another gap exists in [DOD’s] ability to operate on social media and the Internet, due to a lack of organic capability” in relevant languages and culture, not to mention a compelling alternative vision that would appeal to Islamic State recruits. The Department will be forced to rely on contractors, even as it pursues efforts to “improve the Department’s ability to effectively operate in the social media and broader online information space.”

And even with a mature capacity to act, DOD’s role in counter-propaganda would still be hampered by current policy when it comes to offensive cyber operations, for which high-level permission is required, he said.

“The ability to rapidly respond to adversarial messaging and propaganda, particularly with offensive cyberspace operations to deny, disrupt, degrade or corrupt those messages, requires an Execute Order (EXORD) and is limited by current U.S. government policies.”

“The review and approval process for conducting offensive cyberspace operations is lengthy, time consuming and held at the highest levels of government,” Gen. Votel wrote. “However, a rapid response is frequently required in order to effectively counter the message because cyber targets can be fleeting, access is dynamic, and attribution can be difficult to determine.”

No immediate solution to that policy problem is at hand, as far as is known.

The difficulty that the U.S. government has had in confronting the Islamic State on the level of messaging, influence or propaganda is more than an embarrassing bureaucratic snafu; it has also tended to expedite the resort to violent military action.

“Overmatched online, the United States has turned to lethal force,” wrote Greg Miller and Souad Mekhennet of the Washington Post, in a remarkable account of the Islamic State media campaign. (“Inside the surreal world of the Islamic State’s propaganda machine,” November 20).

*    *    *

The House Armed Services Committee now produces the most informative hearing volumes of any congressional committee in the national security domain. Beyond the transcripts of the hearings themselves, which are of varying degrees of interest, the published volumes typically include additional questions that elicit substantive new information in the form of agency responses to questions for the record.

The new hearing volume on US Special Operations Command notes, for example:

*    USSOCOM currently deploys 20-30 Military Information Support Teams to embassies around the world. They are comprised of forces “specially trained in using information to modify foreign audiences’ behavior” [page 69].

*    “Only one classified DE [directed energy] system is currently fielded by USSOCOM and being used in SOF operations” [page 61]. Other directed energy technology development programs have failed to meet expectations.

*    Advanced technologies of interest to SOCOM include: signature reduction technologies; strength and endurance enhancement; unbreakable/unjammable, encrypted, low probability to detect/low probability of intercept communications; long-range non-lethal vehicle stopping; clandestine non-lethal equipment and facility disablement/defeat; advanced offensive and defensive cyber capabilities; weapons of mass destruction render safe; chemical and biological agent defeat [page 77].

Another recently published House Armed Services Committee hearing volume is “Cyber Operations: Improving the Military Cybersecurity Posture in an Uncertain Threat Environment.”

 

GAO Posts Titles of Restricted Reports

Updated below

The Government Accountability Office this week quietly published a list of titles of its restricted reports that have not been publicly released because they contain classified information or controlled unclassified information.  A new link to “Restricted Products” appears at the bottom of the GAO homepage (under Reports & Testimonies).

“This list is intended to keep Congress, federal agencies, and the public informed of the existence of these products. The list consists of all such classified or controlled products issued since September 30, 2014 and will be updated each time a new report is issued,” the GAO webpage says.

“We did not issue a statement or announcement” concerning the new listing, said Timothy L. Minelli of GAO Congressional Relations.

A congressional staffer said the move was prompted by concerns expressed by some Members of Congress and staff that they were unaware of the restricted reports, since they had not been indexed or archived by GAO.

Publication of the titles of restricted GAO reports “was not necessarily universally desired by everyone in Congress,” the staffer said, and “it took about a year” to resolve the issue. But “GAO deserves a lot of credit. They decided it was the right thing to do, and they did it.”

Although primarily aimed at congressional consumers, the new webpage also serves to inform the public. GAO is not subject to the Freedom of Information Act, but will usually entertain requests for records anyway. However, GAO is not authorized to release information that has been classified or controlled by an executive branch agency.

There are several limitations to the new disclosure policy. It does not reflect restricted GAO reports that were generated prior to 2014. It will not cite titles that are themselves classified. And it will not include reports that focus on an individual intelligence agency.

“We excluded titles of products primarily focused on an element of the intelligence community to be consistent with the general practices of the IG [Inspector General] Offices within that IC community, who generally don’t post these titles,” said Mr. Minelli of GAO. “Only titles of products that that are primarily focused on an element of the IC won’t be listed, which we believe will be a very small number, likely less than a handful per year.”

“More common are GAO products that address activities/operations of IC elements in the context of a broader set of questions we are answering, and the titles of these products are being posted,” he said.

“Finally, in a number of cases and pending the classification and sensitivity reviews conducted by the appropriate agencies, GAO will follow its usual practice of trying to issue public versions of classified and sensitive-but-unclassified  products that have had classified and SBU material removed.  These reports are posted on our website and publicly available,” he said.

Update: A listing of GAO restricted report titles from 1971-2011 was obtained and published by GovernmentAttic.org, which also obtained copies of the first page of each GAO report issued prior to 1972 that remains classified.

OLC: President May Withhold WMD Info from Congress

Despite an explicit statutory requirement to keep Congress “fully and currently informed” about the proliferation of weapons of mass destruction, the President may withhold proliferation-related information from Congress if he determines that doing so could harm the national security, according to a sweeping opinion from the Justice Department Office of Legal Counsel (OLC) that was prepared in 2003.

The opinion, written by then-OLC deputy John C. Yoo, was released this week under the Freedom of Information Act. See Presidential Authority to Protect National Security Information, January 27, 2003.

The OLC opinion takes an uncompromising view of presidential authority. It reviews multiple statutes that mandate disclosure of various types of information to Congress, including requirements to report on WMD proliferation and to keep the intelligence committees “fully and currently informed of all intelligence activities.” It then concludes that those statutes cannot override, modify or limit the President’s constitutional prerogatives.

“Despite Congress’s extensive powers under the Constitution, its authorities to legislative [sic] and appropriate cannot constitutionally be exercised in a manner that would usurp the President’s authority over foreign affairs and national security,” the OLC opinion said.

Even to a layman, the Yoo opinion seems muddled and poorly argued, in several respects.

*    Yoo claims that the statute requiring reporting of WMD proliferation was obviated by a signing statement issued by President Clinton in 1999. “In signing the legislation, President Clinton stated that section 1131 and similar provisions raised serious constitutional questions.” But upon examining the text of that 1999 signing statement, one finds that Clinton did not mention section 1131 at all, and the President’s comments there have no bearing on WMD proliferation or congressional reporting requirements.

*    Yoo uses the word “disclosure” throughout the opinion to refer to classified reporting to Congress, which excludes public release of the information. At no point does he try to explain how such reporting through classified channels “could harm the national security” if the information never became public.

*    Yoo does not acknowledge or mention the Supreme Court’s 1952 Youngstown decision which addressed Presidential authority in the face of contrary statutory imperatives: “When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” To sustain his position, Yoo cannot admit the existence of any relevant constitutional powers of Congress, since those would diminish the President’s freedom of action.

*    Yoo does allow that “the President can disclose such information as a matter of inter-branch comity to members of Congress of his choosing when he judges it consistent with the national security.” But this is incoherent, even by Yoo’s own lights, since whenever disclosure is consistent with national security, the President’s authority to withhold it evaporates. Then disclosure to Congress would not be a matter of comity at all, but a binding requirement.

The six page OLC opinion does have some positive features.

*    It was prompted by an inquiry to OLC from then-White House Counsel Alberto R. Gonzales as to “whether the President has the constitutional authority to withhold sensitive national security information from Congress involving the proliferation of weapons of mass destruction by other nations.” So the very fact of the inquiry is an indication that the authority to withhold was not self-evident even to the George W. Bush White House.

*    The opinion discloses the title of at least one previously unknown OLC opinion on Congressional Notification for Certain Special Operations (November 1, 2002).

It is unclear whether the 2003 Yoo OLC opinion has had any enduring impact or influence on executive branch policy.

The first known public reference to the opinion appeared in a declassified version of the 2009 Joint Inspector General report on the President’s Surveillance Program (Stellar Wind) that was obtained by the New York Times this year in response to a FOIA lawsuit.

Footnote 192 on page 167 of the DOJ volume of the Joint Report (p. 504 in the NYT PDF) reads in part: “Citing… a 2003 OLC opinion, Gonzales’s letter stated that the President has the constitutional authority to define and control access to the nation’s secrets, ‘including authority to determine the extent to which disclosure may be made outside the Executive Branch’.”

The reference to the 2003 OLC opinion was first noticed by Marcy Wheeler last May.

In its response to a Freedom of Information Act request, the Office of Legal Counsel said that the 2003 Yoo opinion “is protected by the deliberative process and attorney-client privileges and [is] exempt from mandatory disclosure pursuant to FOIA Exemption Five.”

Nevertheless, wrote OLC Special Counsel Paul P. Colborn, “we are releasing it to you as a matter of discretion.”

The “Cadillac Tax,” Congress 101, and More from CRS

Several new reports from the Congressional Research Service examine the implications of the 40% excise tax on high-cost employer-sponsored health care coverage, known as the “Cadillac tax,” that will take effect in 2018.

Excise Tax on High-Cost Employer-Sponsored Health Coverage: In Brief, August 14, 2015

The Excise Tax on High-Cost Employer-Sponsored Health Insurance: Estimated Economic and Market Effects, August 20, 2015

The Excise Tax on High-Cost Employer-Sponsored Health Coverage: Background and Economic Analysis, August 20, 2015

Other newly-updated CRS reports introduce the basic legislative functions of Congress, perhaps for novice Members and staff.

Resolving Legislative Differences in Congress: Conference Committees and Amendments Between the Houses, August 3, 2015

House Committee Hearings: Preparation, August 25, 2015

House Committee Hearings: Arranging Witnesses, August 25, 2015

House Committee Hearings: Scheduling and Notification, August 25, 2015

Calendars of the House of Representatives, August 25, 2015

Pairing in Congressional Voting: The House, August 25, 2015

Quorum Requirements in the House: Committee and Chamber, August 25, 2015

Amendments in the Senate: Types and Forms, August 25, 2015

Amendments in the House: Types and Forms, August 21, 2015

How Measures Are Brought to the Senate Floor: A Brief Introduction, August 5, 2015

Introducing a House Bill or Resolution, August 6, 2015

House Committee Hearings: Witness Testimony, August 10, 2015

Types of Committee Hearings, August 10, 2015

Delegates to the U.S. Congress: History and Current Status, August 25, 2015

A New Direction for the Library of Congress?

With the impending retirement of the longtime Librarian of Congress, James H. Billington, there is an opportunity for a fundamental reconsideration of the function and operation of the Library of Congress. In particular, the time may be ripe for a massive expansion of the Library’s digitized holdings, enabling universal public access to its historic and cultural riches.

There are “Great New Possibilities for the Library of Congress!” according to the headline of an article by Harvard professor Robert Darnton in the New York Review of Books, August 13 (sub. req’d, exclamation mark in the original).

Dr. Billington (who oddly goes unmentioned by name in the NY Review article) is a figure of exceptional stature, and he has been for a long time. The 1959 book Tolstoy or Dostoevsky by the eminent literary critic George Steiner included an acknowledgment of thanks to Billington along with Isaiah Berlin, Alexandre Koyré, and J. Robert Oppenheimer, among other icons of a prior era. More recently, in 2004, former FAS President Jeremy J. Stone facilitated a trip by Dr. Billington to Iran to meet with the director of that country’s National Library, the first such visit to Iran by any U.S. government official in many years. (Originally “unannounced” and confidential, the trip was, ahem, disclosed by the Federation of American Scientists and reported in the New York Times, and it is now cited in Billington’s official bio.)

But one thing Dr. Billington has not been, by most accounts, is a digital pioneer who could lead the Library of Congress boldly into the unfolding media and communications environment of the present day. (However, his bio notes to the contrary that “His proposal in 2005 for the creation of a World Digital Library was endorsed by UNESCO in 2007 and launched online at www.wdl.org in April 2009.”)

The time for a change may have come.

“While other great libraries were leading the way into the digital future, [the Library of Congress] failed to manage its own information technology,” wrote Prof. Darnton in the NY Review.

“A new regime at the Library of Congress (LOC) could digitize its collections and link them with collections in other libraries, archives, and museums so that everyone has access to the resources that are everyone’s heritage… The repository of the LOC would then serve as the heart of a digital circulatory system that would energize the entire country,” Darnton wrote.

Perhaps so, although the chain of causality in that vision is a little vague. But much less ambitiously, the arrival of new leadership at the Library of Congress might also set the stage for a change of policy authorizing public access to non-confidential products of the Congressional Research Service, which is formally a part of the Library (though CRS too goes unmentioned in the NY Review article).

Until then, unauthorized access will have to do. New and updated reports from CRS that Congress has not seen fit to make publicly available online include the following.

A Guide to U.S. Military Casualty Statistics: Operation Freedom’s Sentinel, Operation Inherent Resolve, Operation New Dawn, Operation Iraqi Freedom, and Operation Enduring Freedom, updated August 7, 2015

Department of Homeland Security Appropriations: FY2016, August 7, 2015

FY2016 Appropriations for the Census Bureau and Bureau of Economic Analysis, August 7, 2015

Obergefell v. Hodges: Same-Sex Marriage Legalized, August 7, 2015

Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China: Issues for Congress, updated August 7, 2015