Secrecy News

White House Directive Spawns Confusion

Updated below

Four months after President Trump issued his National Security Presidential Memorandum 5 on US policy towards Cuba and ordered it to be published in the Federal Register, that has still not been accomplished.

The Memorandum, posted on the White House web site on June 16, states that “The Secretary of State is hereby authorized and directed to publish this memorandum in the Federal Register.”

That was never done. Why not?

The State Department says it did not receive the Cuba directive in the proper form.

“The Federal Register requires the signed original be submitted for publication,” a State Department spokesman said last week. “The Department of State does not yet have the original document. We refer you to the White House for further information.”

For its part, the White House said the State Department spokesman was misinformed, that a certified copy had been promptly delivered to the executive secretariat within the Office of the Secretary of State, and that the document was ripe for publication in the Federal Register.

The fact remains that four months after its issuance NSPM 5 has yet to appear in the Federal Register as ordered by the President.

That kind of delay in publication is unusual. The previous National Security Presidential Memorandum, NSPM 4, was issued on April 4, 2017, and it was published in the Federal Register two days later on April 6.

What’s even more peculiar is that the whole notion of publishing the directives in the Federal Register seems to be based on a misunderstanding.

Prior to the Trump Administration, national security directives were never published in the Federal Register. But because the Trump directives were styled as “National Security Presidential Memoranda” it appears that they were drafted by White House officials using a template for ordinary (non-national security) “presidential memoranda,” which are routinely published in the Federal Register every few days.

Perhaps belatedly recognizing that fact, the latest NSPM 7 on “Integration, Sharing, and Use of National Security Threat Actor Information to Protect Americans” that was issued on October 4 and posted on the White House website is the first unclassified Trump NSPM that does not mandate publication in the Federal Register. (A classified annex to NSPM 7 listing attributes of “national security threat actors” was not released.) [Correction 10/16/17: Though initially withheld, the annex to NSPM 7 is unclassified and has been appended to the document posted on the White House website.]

Meanwhile, the sequential gap between NSPM 5 and NSPM 7 points to the existence of an NSPM 6. It is a classified document that has not been disclosed.

The Washington Post reported on September 30 that “Trump signed [a] presidential directive ordering actions to pressure North Korea.” But as far as could be determined, that reported directive was not NSPM 6 and apparently was not a “National Security Presidential Memorandum” at all, raising the possibility that the Trump White House is using some other yet-unidentified instrument of presidential authority to implement national security policy.

Update 10/20/17: NSPM 5 was published in the Federal Register on October 20, 2017.

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