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

House Adopts Intel Bill, Senate Affirms Torture Ban

The House of Representatives yesterday approved its version of the FY 2016 intelligence authorization act (HR 2596).

The bill includes “several” new reporting requirements intended “to enhance Congress’ role in and understanding of the classification process,” said Rep. Doug Collins (R-GA). One of these requirements is for a report to Congress noting each occasion in the past 5 years in which non-compartmented intelligence reporting has been disseminated through a (more restrictive) compartmented channel.

The bill passed by the House preserves a proposed new restriction on the Privacy and Civil Liberties Oversight Board barring its access to covert action information. The Washington Post reported last week that the restriction was prompted by an op-ed written by the Board chairman suggesting that the Board might be able to assist in oversight of covert targeted killing operations.

Also yesterday, the Senate voted 78-21 to affirm a ban on torture and to limit the use of interrogation techniques to those that are included in Army Field Manual 2-22.3 (Appendix M). The measure was sponsored by Senators McCain and Feinstein.

“Current law already bans torture, as well as cruel, inhuman, or degrading treatment or punishment,” Sen. McCain noted.

“However,” he said, “this amendment is still necessary because [after 9/11, so-called ‘enhanced’] interrogation techniques were able to be used, which were based on a deeply flawed legal theory, and those techniques, it was said, did not constitute ‘torture’ or ‘cruel, inhuman, or degrading treatment.’ These legal opinions could be written again.” The amendment is intended to preclude that possibility.

“I ask my colleagues to support this amendment,” Sen. Feinstein said, “and by doing so, we can recommit ourselves to the fundamental precept that the United States does not torture–without exception and without equivocation–and ensure that the mistakes of our past are never again repeated in the future.”

Sen. John Cornyn (R-TX), who opposed the amendment, said “the effect of this policy is to hand our entire interrogation playbook to groups such as the self-declared Islamic State of Iraq and the Levant, ‘ISIL,” Al Qaeda, and the Taliban, which is a profound mistake.”

House Intelligence Bill Would Limit PCLOB Oversight

Updated below

The House Intelligence Committee inserted language in the pending intelligence authorization bill that would bar access by the Privacy and Civil Liberties Oversight Board (PCLOB) to classified information pertaining to covert action.

“Nothing in the statute authorizing the Privacy and Civil Liberties Oversight Board should be construed to allow that Board to gain access to information the executive branch deems to be related to covert action,” according to the new Committee report on the Intelligence Authorization Act for FY 2016 (section 306), published yesterday.

To the extent that covert action is employed against terrorism and is therefore within the scope of PCLOB’s charter, the House Committee action would preclude PCLOB oversight of the implications of such covert actions for privacy and civil liberties.

That “unduly restricts” PCLOB’s jurisdiction, according to Rep. James Himes (D-CT), a member of the House Intelligence Committee who unsuccessfully sought to modify the provision.

It is possible that there is some tacit rivalry between PCLOB and the congressional intelligence oversight committees, particularly since the PCLOB found that the Section 215 program for collection of telephone metadata was unlawfully implemented while the oversight committees had approved and embraced it. (The recurring failure of the intelligence oversight committees to accurately represent broader congressional and public perspectives over the past decade is a subject that remains to be addressed.)

By contrast, the same House bill directed that the DNI shall provide the Government Accountability Office with the access to information that it needs to perform its authorized functions. The relevant directive (ICD 114) “shall not prohibit the Comptroller General [i.e., the head of the GAO] from obtaining information necessary to carry out an audit or review at the request of the congressional intelligence and defense committees.”

The new House Committee measure may be gratuitous in any event, since the PCLOB is an executive branch agency and is already subject to the authority of the Director of National Intelligence to protect intelligence sources and methods, and to regulate access accordingly.

The PCLOB has recently posted a plan for its review of two counterterrorism-related activities governed by Executive Order 12333.

“The Board plans to concentrate on activities of the CIA and NSA, and to select activities that involve one or more of the following: (1) bulk collection involving a significant chance of acquiring U.S. person information; (2) use of incidentally collected U.S. person information; (3) targeting of U.S. persons; and (4) collection that occurs within the United States or from U.S. companies,” the PCLOB plan said.

Yesterday, Senators Dianne Feinstein and John McCain introduced an amendment to the 2016 defense authorization act “to reaffirm the prohibition on torture.” The amendment would limit interrogation techniques to those included in the unclassified Army Field Manual 2-22.3 (Appendix M). And it would require regular review of “to ensure that Army Field Manual 2-22.3 complies with the legal obligations of the United States and reflects current, evidence-based, best practices for interrogation that are designed to elicit reliable and voluntary statements and do not involve the use or threat of force.” The amendment had not yet been voted on as of yesterday.

Update: The origins of the House Intelligence Committee’s apparent animosity towards the Privacy and Civil Liberties Oversight Board were explored by Ellen Nakashima in Upset over op-ed, GOP lawmakers seek to curb privacy board, Washington Post, June 10, 2015.

House Renews Ban on CRS Publication of Its Reports

The Congressional Research Service (CRS) will continue to be barred from releasing its reports to the public, the House Appropriations Committee said yesterday in its report on legislative branch appropriations for the coming year.

“The bill contains language which provides that no funds in the Congressional Research Service can be used to publish or prepare material to be issued by the Library of Congress unless approved by the appropriate committees,” the House report said.

Because Congress prohibits CRS from publishing its own reports, most CRS reports are only available to the public from non-governmental organizations that take the initiative to gather and publish them. Many such reports can be found in a collection that is maintained and regularly updated on the Federation of American Scientists website.

In the new spending bill, the House Committee ominously rejected a CRS request for a $5 million budget increase in 2016, and allocated $107 million, the same as the 2015 level.

“The Legislative Branch must set itself as an example for fiscal restraint while continuing to serve the Nation. This bill will require strict fiscal discipline on the part of all congressional offices and all agency heads in the Legislative Branch,” the report said.

But from another perspective, “this bill falls short in providing Congress with the resources needed to fulfill its constitutional duties,” said Reps. Debbie Wasserman Schultz and Nita M. Lowey in minority views. “The Legislative Branch bill provides another year of flat funding, the third in a row.”

In a move that is perhaps even more worrisome for CRS, “The Committee directs the Library of Congress to commission an independent survey of all Members and committees of the House of Representatives to ascertain their fundamental and optimal requirements for services and support from the Library of Congress and especially the Congressional Research Service.”

The problem here is that the CRS services that congressional offices are likely to find most “useful” are not necessarily those that are most “valuable.”

What is often deemed most useful is having CRS analysts assist congressional staff in responding to constituent mail, including eccentric or demented requests for information.

Why is the US Postal Service “stockpiling ammunition”? That sort of question helped lead CRS analyst Kevin Kosar to leave his job, he explained in an article in the Washington Monthly earlier this year (“Why I Quit the Congressional Research Service,” Jan/Feb 2015).

What is most valuable, by contrast, is not necessarily of immediate use to individual Members and Committees. That is the kind of in-depth policy analysis that can only be helpful to those whose policy preferences are not predetermined by ideology or affiliation. CRS reports are now cited ever more frequently by reporters and others trying to come to grips with complicated policy issues that entail both costs and benefits.

This particular policy analysis function, however, may not be considered a “fundamental and optimal requirement” by every member of the House.

“Even when we did find time and space to do serious research, lawmakers ignored our work or trashed us if our findings ran contrary to their beliefs,” wrote former CRS analyst Kosar.

House Defense Bill Seeks Expedited Declassification of POW Records

The House Armed Services Committee is asking the Secretary of Defense to identify “specific inefficiencies with regard to the process for the declassification of documents” pertaining to prisoners of war and missing in action personnel, and ways to expedite the release of such documents. The directive was included in the new Committee report on the FY 2016 defense authorization act.

Declassification of POW/MIA records is a niche issue of intense personal interest to some, and of no particular interest to others. But because such niche issues embody systemic problems, they have the potential to drive changes in policy that can have ripple effects throughout the national security classification process, as disputes over release of JFK assassination records have done in the past.

Thus, the Committee asked the Secretary to report on “challenges in current declassification procedures; recommendations to expedite procedures for interagency declassification; recommendations for procedures to declassify redacted portions of previously released documents;…” and so forth.

In a separate provision, the House Committee responded to a Department of Energy Inspector General finding this year that information had sometimes been misclassified and/or improperly disclosed at Los Alamos National Laboratory. The Committee instructed the National Nuclear Security Administration to report on “the measures taken to improve the effectiveness of the classification process and related oversight.”

A Growing Body of Secret Intelligence Law

Updated below

After President Obama suggested in a 2013 speech that the CIA drone program could be transferred to the Department of Defense, Senator Dianne Feinstein inserted a classified amendment in a spending bill to discourage the move, Politico recalled in a story last month.

Classified legislative language has been generated by Congress and used to shape intelligence policy each year since the congressional intelligence committees prepared the first stand-alone intelligence authorization act in 1977 (for Fiscal Year 1978).

Though unpublished, those classified provisions have the force of law, the Senate Intelligence Committee declared in the FY 1978 intelligence authorization report (S.Rpt. 95-214, May 16, 1977):

“It is the intent of the committee that the classified report, although not available to the public, will nonetheless have the force of a Senate authorization bill; further that the Intelligence Community shall comply fully with the guidelines and limitations contained therein,” the intelligence authorization report said.

What were those guidelines and limitations that the Intelligence Community was obliged to comply with? That remains a secret almost four decades later, because that first classified committee report has never been made public. Neither has a single one of the subsequent classified annexes to the annual committee authorization bills. Though they may have the legal force of other authorizing legislation, their classified contents remain almost entirely inaccessible to the public.

“The idea of secret laws is repugnant,” a federal appeals court memorably said (Torres v. INS, 7th circuit, 1998). The court’s concern at the time was that “People cannot comply with laws the existence of which is concealed.” But compliance aside, secret laws are also problematic because people cannot challenge them or seek to amend them.

“Secret law” can take a variety of forms. The term is often invoked with respect to unreleased opinions of the Office of Legal Counsel that interpret the law for the executive branch in undisclosed ways. It can also apply to secret presidential directives that define national policies and to some other categories of government information.

The classified annexes to the annual intelligence bills appear to constitute secret law in a strict sense. They legislatively establish programs, allocate resources, impose requirements and prohibitions on executive agencies, and more– all without public notice or accountability.

As U.S. foreign intelligence agency activities have expanded into non-consensual domestic collection practices and unconventional “enhanced” techniques, the secret laws that govern them become more than an abstract concern.

Only sporadically do particular provisions of classified annexes to the intelligence bills ever come to public knowledge, whether through leaks or official disclosures.

The account of Sen. Feinstein’s secret intervention to maintain the CIA drone program was first reported by Greg Miller in the Washington Post (“Lawmakers seek to stymie plan to shift control of drone campaign from CIA to Pentagon,” January 15, 2014).

On other occasions, the Senate Intelligence Committee has voluntarily disclosed some of its own classified actions, if only in broad outline. Thus, the Committee revealed in a retrospective report this year:

*    “In the Intelligence Authorization Act for Fiscal Year 2014 and associated classified annex, the Committee recommended additional resources to help assure the IC meets [its] counterintelligence and security goals as soon as possible.”

*    “The classified annex of the Intelligence Authorization Act for Fiscal Year 2015 required the DNI to provide an implementation plan for the Human Capital Vision.”

*    “The classified annex of the Intelligence Authorization Act for Fiscal Year 2014 directed the development of a specific GAO review to bolster intelligence oversight and reduce unnecessary fragmentation, overlap, and duplication.”

*    “The classified annex of the Intelligence Authorization Act for Fiscal Year 2014 required the DNI create a governance and oversight model to provide the DNI and the Congress with the insight required to ensure IC ITE [the IC Information Technology Enterprise] meets milestones for performance, cost, and schedule. The classified annex of the Intelligence Authorization Act for Fiscal Year 2015 required the CIA, DIA, NRO, NGA, and NSA to provide specific plans for adoption of IC ITE-compliant capabilities.”

Secret intelligence legislation is a subset of an even larger problem of secret congressional records that, once classified, remain that way indefinitely.

“The declassification procedures for classified records created by committees of Congress, particularly classified reports and closed hearing transcripts, are irregular and limited,” said the Public Interest Declassification Board in a 2007 report on Improving Declassification.

“The classified records created by the Congress often provide unique and significant insights into national security policy, decision making, and the budget and oversight process at a given point in time,” the PIDB report said. “Yet, because the records of the committees are classified and never subjected to declassification review, the public and historians are largely unaware of their existence.”

The PIDB recommended that “formal procedures should be established for the declassification review of classified committee reports and hearing transcripts.” But with few exceptions, that recommendation has not been acted upon, and the number of declassified congressional reports remains disappointingly small.

One example of a declassified committee report is the release last year of a redacted summary of the SSCI report on CIA detention and interrogation. Another is the redacted 2002 final report of the congressional joint inquiry into the 9/11 terrorist attacks.

Over the years, the Senate Foreign Relations Committee has published declassified transcripts of the Committee’s executive sessions (closed hearings) in a series of twenty volumes covering 1947 through 1968.  But after the latest volumes were published in 2007 and 2010 (covering hearings in 1967 and 1968), no further releases have been forthcoming from the Committee.

Update: For a response from ODNI, see Annexes to Intelligence Bills are not “Secret Law.”

CIA Torture Report: Oversight, But No Remedies Yet

The release of the executive summary of the Senate Intelligence Committee report on CIA’s post-9/11 interrogation program is, among other things, an epic act of record preservation.

Numerous CIA records that might not have been disclosed for decades, or ever, were rescued from oblivion by the Senate report and are now indelibly cited and quoted, even if many of them are not yet released in full.

That’s not a small thing, since the history of the CIA interrogation program was not a story that the Agency was motivated or equipped to tell.

“The CIA informed the Committee that due to CIA record retention policies, the CIA could not produce all CIA email communications requested by the Committee,” the report noted, explaining that the desired information was sometimes recovered from a reply message when the original email was missing.

Agency emails turned out to be a critical source of information, a fact that illuminates the Committee’s sharp response recently to the (now suspended) CIA proposal to the National Archives (NARA) to destroy most Agency emails of non-senior officials.

Thus, the gruesome record of the waterboarding of al Qaeda operative Abu Zubaydah “was referenced in emails, but was not documented or otherwise noted in CIA cables.” (This is at odds with NARA’s initial view that “It is unlikely that permanent records will be found in these email accounts that is not filed in other appropriate files.”)

The Committee report is also a remarkable demonstration of the congressional oversight function that is all the more impressive because it was performed in adverse, unfavorable conditions.

It is striking to see how the CIA sometimes treated the Senate Intelligence Committee, its leadership and its staff with the same disdain and evasiveness that is often perceived by FOIA requesters and other members of the public.

Committee questions were ignored, inaccurate information was provided, and the oversight process was gamed.

“Internal CIA emails include discussion of how the CIA could ‘get… off the hook on the cheap’ regarding [then-Committee] Chairman [Bob] Graham’s requests for additional information…. In the end, CIA officials simply did not respond to Graham’s requests prior to his departure from the Committee in January 2003,” the report said.

“I am deeply disturbed by the implications of the study for the committee’s ability to discharge its oversight responsibility,” wrote Sen. Angus King (I-Maine) in his additional remarks. “Because it appears from the study that the committee was continuously misled as to virtually all aspects of this program, it naturally raises the extremely troubling question as to whether we can trust the representations of the agency in connection with difficult or sensitive issues in the future.”

But minority members of the Committee disputed this characterization: “In reality, the overall pattern of engagement with the Congress shows that the CIA attempted to keep the Congress informed of its activities,” they wrote in their extensive dissenting views.

Perhaps the most important achievement of the Committee report was to document and memorialize the fact that agents of the US Government practiced torture. Not “harsh measures” or “enhanced techniques,” but torture.

Senator Susan Collins (R-Maine), who criticized what she said were methodological flaws in the Committee report, said in her additional views that “Despite these significant flaws, the report’s findings lead me to conclude that some detainees were subject to techniques that constituted torture. This inhumane and brutal treatment never should have occurred.”

By the same token, the most important omission from the report is the absence of any discussion of remedies.

Now that it is firmly established that “we tortured some folks,” as President Obama awkwardly put it, the question is what to do about it. Confession without atonement is incomplete.

Prosecution seems problematic for a number of reasons, including the difficulty of localizing responsibility, when it is entire institutions and not just particular officials that failed.

A different approach to the problem would start by considering the individuals who suffered abuse at the hands of the U.S. government, including a number of persons who were detained in error. Congress could now ask how some of them (i.e. those who are still alive) could be compensated in some measure for what was wrongly done to them.

Several previous efforts to seek remedies for torture were deflected by use of the state secrets privilege. In light of the detailed findings of the Senate Intelligence Committee report, that sort of evasion should be harder to sustain. Congress could accelerate a resolution of the problem with a focused investigation of what potential remedies are now feasible and appropriate.

Congress Tells DoD to Report on Leaks, Insider Threats

For the next two years, Congress wants to receive quarterly reports from the Department of Defense on how the Pentagon is responding to leaks of classified information. The reporting requirement was included in the pending National Defense Authorization Act for FY 2015 (Sec. 1052).

“Compromises of classified information cause indiscriminate and long-lasting damage to United States national security and often have a direct impact on the safety of warfighters,” the Act states.

“In 2010, hundreds of thousands of classified documents were illegally copied and disclosed across the Internet,” it says, presumably referring to the WikiLeaks disclosures of that year.

“In 2013, nearly 1,700,000 files were downloaded from United States Government information systems, threatening the national security of the United States and placing the lives of United States personnel at extreme risk,” the Act states, in a presumed reference to the Snowden disclosures. “The majority of the information compromised relates to the capabilities, operations, tactics, techniques, and procedures of the Armed Forces of the United States, and is the single greatest quantitative compromise in the history of the United States.”

The Secretary of Defense will be required to report on changes in policy and resource allocations that are adopted in response to significant compromises of classified information.

The defense authorization act does not address irregularities in the classification system, such as overclassification or failure to timely declassify information.

It does call for additional reporting on the Department of Defense “insider threat” program (Sec. 1628), and on “the adoption of an interim capability to continuously evaluate the security status of the employees and contractors of the Department who have been determined eligible for and granted access to classified information.”

By definition, this continuous evaluation approach does not focus on suspicious individuals or activities, but rather is designed to monitor all security-cleared personnel.