OLC Nominee: Every Member of Congress Can Do Oversight

The nominee to lead the Justice Department Office of Legal Counsel acknowledged that all members of Congress have the authority to conduct oversight of the executive branch, and that agencies have a responsibility to accommodate requests by members for information needed to perform their oversight function.

That might seem like a statement of the obvious. But the Office of Legal Counsel issued a controversial opinion earlier this year that took a much more limited view of congressional oversight power:

“The constitutional authority to conduct oversight — that is, the authority to make official inquiries into and to conduct investigations of executive branch programs and activities — may be exercised only by each house of Congress or, under existing delegations, by committees and subcommittees (or their chairmen),” the OLC opinion said. “Individual members of Congress, including ranking minority members, do not have the authority to conduct oversight in the absence of a specific delegation by a full house, committee, or subcommittee.”  See Authority of Individual Members of Congress to Conduct Oversight of the Executive Branch, Office of Legal Counsel, May 1, 2017.

Objecting to this narrow OLC conception of oversight, Sen. Chuck Grassley placed a hold on the nomination of Steven A. Engel to become the new Assistant Attorney General in charge of the OLC until Mr. Engel provided an acceptable response to Grassley’s concerns on the matter.

Yesterday, Senator Grassley withdrew his hold after Mr. Engel admitted, in written responses to questions from Grassley entered into the Congressional Record, that the OLC opinion was defective.

“Mr. Engel’s responses, both in writing and in person, indicate that he agrees each Member, whether or not a chairman of a committee, is a constitutional officer entitled to the respect and best efforts of the executive branch to respond to his or her requests for information to the extent permitted by law,” Sen. Grassley said.

“I am satisfied that Mr. Engel understands the obligation of all Members of Congress to seek executive branch information to carry out their constitutional responsibilities and the obligation of the executive branch to respect that function and seek comity between the branches. Therefore, I agree a vote should be scheduled on his nomination, and I wish him the very best in his new role,” he said.

See Removal of Nomination Objection, Congressional Record, July 19, 2017, pp. S4077-4079.

The Fifth Amendment in Congressional Investigations

Individuals have a broad right to refuse to testify before Congress by invoking the Fifth Amendment right against self-incrimination, the Congressional Research Service explained last week.

“Even a witness who denies any criminal wrongdoing can refuse to answer questions on the basis that he might be ‘ensnared by ambiguous circumstances’.”

On the other hand, the scope of the Fifth Amendment privilege applies more narrowly when it comes to a congressional demand that a witness produce documents. “The Supreme Court has made clear that the mere fact that the contents of a document may be incriminating does not mean that the document is protected from disclosure under the Fifth Amendment.”

See The Fifth Amendment in Congressional Investigations, CRS Legal Sidebar, May 26, 2017.

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

President’s FY2018 Budget Proposes Cuts in Public Health Service (PHS) Agency Funding, CRS Insight, May 24, 2017

President John F. Kennedy Assassination Records Collection: Toward Final Disclosure of Withheld Records in October 2017, CRS Insight, May 26, 2017

Trump Objects to Legislated Limits on Secrecy

In the new Consolidated Appropriations Act of 2017 (section 8009), Congress mandated that no new, highly classified special access programs may be created without 30 day advance notice to the congressional defense committees.

But in signing the bill into law last Friday, President Trump said he would not be bound by that restriction.

“Although I expect to be able to provide the advance notice contemplated by section 8009 in most situations as a matter of comity, situations may arise in which I must act promptly while protecting certain extraordinarily sensitive national security information. In these situations, I will treat these sections in a manner consistent with my constitutional authorities, including as Commander in Chief,” he wrote in a May 5 signing statement.

More generally, Trump suggested that his power to classify national security information is altogether independent of Congress. “The President’s authority to classify and control access to information bearing on the national security flows from the Constitution and does not depend upon a legislative grant of authority,” he wrote.

This is a paraphrase of language in the 1988 US Supreme Court opinion in Department of the Navy v. Egan (The President’s “authority to classify and control access to information bearing on national security… flows primarily from this Constitutional investment of power in the President and exists quite apart from any explicit congressional grant.”)

But left unsaid in President Trump’s signing statement was that the Supreme Court has also held that Congress could modify existing classification procedures or create its own secrecy system.

Thus, in EPA v. Mink (1973), the Supreme Court stated: “Congress could certainly have provided that the Executive Branch adopt new [classification] procedures, or it could have established its own procedures — subject only to whatever limitations the Executive privilege may be held to impose upon such congressional ordering.”

And, as noted by Jennifer Elsea, Congress has in fact legislated a classification regime for nuclear weapons-related information in the Atomic Energy Act.

So the newly legislated notification requirements concerning special access programs appear to be well within the constitutional authority and power of Congress.

The Intelligence Authorization Act for FY 2017 was incorporated into the Consolidated Appropriations Act as “Division N” and enacted into law.

President Trump’s reservations about various provisions in the new appropriations act were presented in the first signing statement issued by the current Administration (h/t Charlie Savage).

Is “Cyberwar” War?

Are offensive cyber operations an act of war?

“I would say specifically to your question what defines an act of war [in the cyber domain]– that has not been defined. We are still working towards that definition across the interagency,” said Thomas Atkin of the Office of Secretary of Defense at a congressional hearing last year.

He elaborated in newly published responses to questions for the record:

“When determining whether a cyber incident constitutes an armed attack, the U.S. Government considers a number of factors including the nature and extent of injury or death to persons and the destruction of, or damage to, property. Besides effects, other factors may also be relevant to a determination, including the context of the event, the identity of the actor perpetrating the action, the target and its location, and the intent of the actor, among other factors.” See Military Cyber Operations, hearing of the House Armed Services Committee, June 22, 2016.

If cyberwar is in fact war, would civilians who support military cyber operations be lawful combatants? They might not be, Mr. Atkin said.

“During armed conflict, some civilians who support the U.S. armed forces may sit at the keyboard and participate, under the direction of a military commander, in cyberspace operations. The law of war does not prohibit civilians from directly participating in hostilities, such as offensive or defensive cyberspace operations, even when that activity would be a use of force or would involve direct participation in hostilities; however, in such cases, a civilian is not a ‘lawful combatant’ and does not enjoy the right of combatant immunity, is subject to direct attack for such time as he or she directly participates in hostilities, and if captured by enemy government forces may be prosecuted for acts prohibited under the captor’s domestic law.”

But any such danger to unlawful civilian cyber-combatants is probably not an imminent hazard, he added. “Most, if not the great majority, of our civilian cyber workforce involved in providing support to cyberspace operations during armed conflict will not be serving on the battlefield where they may be the object of attack or risk being detained by the enemy. Instead, most will be providing their support remotely from areas outside the area of hostilities, are not easily identifiable as an individual, and are likely serving in the United States.”

White House: Prepare for the Unpredictable

“The Nation must prepare to mitigate an unpredictable global security and national emergency environment,” the White House said in a report to Congress this month.

The report, transmitted by President Trump on April 3, provided principles for reform of the selective service process by which young Americans enter the military. The report was required by section 555 of the 2017 defense authorization act.

“The Nation must be ever mindful of the unpredictable global security environment that requires an effective and efficient means to provide manpower to the national security community, including military and non-military support in a national emergency,” the President’s report said.

How to prepare in practice for the unpredictable is not clear, except that it involves flexibility.

“Any system, process, or program used to identify, recruit, and employ additional skill sets should be effective in times of peace, war, and other levels of conflict or emergency response. Associated initiatives, systems, and processes must be seamless, robust, and able to expand and contract as needed,” the report said.

Congress established a new National Commission to consider changes to the selective service system, and to develop “the means by which to foster a greater attitude, ethos, and propensity for military services among United States youth.”

Sharing Classified Info with Foreign Governments

Disclosing classified information to foreign government personnel is ordinarily forbidden, and may constitute espionage. But sometimes it is permitted, even to non-allies.

“National Disclosure Policy Committee (NDPC) policy prohibits the release of classified information [to] a foreign government without an explicit authorization, such as an Exception to United States (U.S.) National Disclosure Policy (ENDP), and an information sharing agreement,” explained VADM James D. Syring, director of the Pentagon’s Missile Defense Agency, in response to a congressional question last year.

Such Exceptions are occasionally requested, however, and granted.

“The Missile Defense Agency (MDA) submitted three requests for Exception to United States National Disclosure Policy (ENDP) from 2007–2011 seeking authority to disclose classified information to the Russian Federation (RF) relating to three ballistic missile defense flight test events,” VADM Syring said.

“In each case, authority granted by the NDPC was limited to oral and visual disclosure only under controlled conditions. The RF sent attendees to two of the three test events (in 2007 and 2010). No invitations were extended for the third event (in August 2011), and no disclosure occurred. MDA has not submitted any further requests for ENDP for the RF.”

“MDA has not sought ENDP [Exceptions] for release of any information to the People’s Republic of China,” he added.

The exchange between VADM Syring and Rep. Mike Rogers appeared in a newly published hearing volume on The Missile Defeat Posture and Strategy of the United States — The Fiscal Year 2017 President’s Budget Request, House Armed Services Committee, April 14, 2016 (at pp. 118-119).  The same volume notably includes discussion of “left of launch” approaches to countering ballistic missile threats.

At its best, congressional oversight can be a powerful engine of disclosure that matches or exceeds what the Freedom of Information Act or other mechanisms can offer. (The FOIA does not permit requesters to ask questions, only to request records.) Hearings of the House Armed Services Committee regularly generate new information on military policy, especially in the published hearing records.

Another newly published HASC hearing containing some nuggets of interest is National Security Space: 21st Century Challenges, 20th Century Organization, September 27, 2016.

Mandating Declassification in Congress

Last week a bill was introduced in the Senate “to require the Secretary of Defense to declassify certain documents related to incidents in which members of the Armed Forces were exposed to toxic substances.”

The bill (S. 726), introduced by Sen. Jerry Moran (R-KS) and Sen. Jon Tester (D-MT), generally requires declassification of all “documents related to any known incident in which not fewer than 100 members of the Armed Forces were exposed to a toxic substance that resulted in at least one case of a disability that a member of the medical profession has determined to be associated with that toxic substance.”

The bill is the latest example of congressional action to initiate, prioritize or override executive branch policy on declassification of national security records.

The new bill grants an exception from the declassification requirement “if the Secretary [of Defense] determines that declassification of those documents would materially and immediately threaten the security of the United States.” This is a notably narrower exemption than that provided by the Freedom of Information Act, which deems records properly classified and therefore exempt if their disclosure would simply cause “damage” to national security.

The bill would not provide any new funding for declassification. So it would presumably be implemented at the expense of current declassification programs.

The Moran-Tester bill may or may not advance through the legislative process. But numerous other congressional declassification initiatives have been enacted into law over the years.

In a report last week, for example, the Senate Intelligence Committee recalled that it had successfully legislated “a requirement that the DNI complete a declassification review of information on the past terrorist activities of detainees transferred or released from Guantanamo, [and] make resulting declassified information publicly available.”  See SSCI Report on activities during the 114th Congress, S.Rpt. 115-13, March 29.

Science & Technology Issues Facing Congress, & More from CRS

Science and technology policy issues that may soon come before Congress were surveyed in a new report from the Congressional Research Service.

Overarching issues include the impact of recent reductions in federal spending for research and development.

“Concerns about reductions in federal R&D funding have been exacerbated by increases in the R&D investments of other nations (China, in particular); globalization of R&D and manufacturing activities; and trade deficits in advanced technology products, an area in which the United States previously ran trade surpluses. At the same time, some Members of Congress have expressed concerns about the level of federal funding in light of the current federal fiscal condition. In addition, R&D funding decisions may be affected by differing perspectives on the appropriate role of the federal government in advancing science and technology.”

See Science and Technology Issues in the 115th Congress, March 14, 2017.

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

The American Health Care Act, March 14, 2017

Previewing a 2018 Farm Bill, March 15, 2017

EPA Policies Concerning Integrated Planning and Affordability of Water Infrastructure, updated March 14, 2017

National Park Service: FY2017 Appropriations and Ten-Year Trends, updated March 14, 2017

Qatar: Governance, Security, and U.S. Policy, updated March 15, 2017

Northern Ireland: Current Issues and Ongoing Challenges in the Peace Process, updated March 14, 2017

Navy LX(R) Amphibious Ship Program: Background and Issues for Congress, updated March 14, 2017

Two Views of the Open Skies Treaty

Russian surveillance of military facilities under the Open Skies Treaty is problematic for the security of U.S. nuclear forces, a U.S. Air Force general told Congress last year. No, it is not, a U.S. Navy admiral said.

Those two disparate views were offered in response to a question for the record from Rep. Mike Coffman (R-CO) following a hearing of the House Armed Services Committee last year.

“Several Defense officials have expressed concerns about Russia’s intent to use advanced digital sensors to collect imagery under the Open Skies Treaty,” Rep. Coffman said. “Is this a significant concern for our nuclear forces?”

“Intelligence collection against our nuclear forces is always a concern,” replied Gen. Robin Rand, commander of the U.S. Air Force Global Strike Command.

“The imaging system to be placed on the Tu-214 and Tu-154 is already in use on Russian aircraft flying Open Skies missions over Europe. The new system possesses greater range and an advanced digital processing capability, providing a significant increase in the number of images that can be collected. This digital capability, through post mission image refinement of raw image data, could potentially enable the Russians to violate the treaty by keeping the raw image data and later using advanced digital image enhancement techniques to refine resolution beyond that allowed in the treaty,” Gen. Rand wrote (at p. 105).

But the same question from Rep. Coffman about the potential threat from improved Russian sensors elicited a substantially different response from VADM Terry Benedict, director of Navy Strategic Systems Programs.

“I do not believe this is a significant concern to our nuclear forces. The resolution of Open Skies imagery is similar to that available in commercial satellite imagery,” VADM Benedict wrote (at p. 106).

Moreover, he added, “All State Parties have the right under the Treaty to certify new sensors and aircraft. The United States and several of our Allies are in various stages of acquiring new digital sensors. The information Russia gleans from Open Skies is of only incremental value in addition to Russia’s other means of intelligence gathering.”

The two responses serve to illustrate the inconvenient reality that many questions of national security policy do not have simple, unequivocal answers. Views that would seem to be authoritative may be contradicted by other assessments that are equally authoritative. Reconciling the contradiction, or overcoming it, requires further investigation. And even that may not be sufficient.

Rep. Coffman’s exchange with Gen. Rand and VADM Benedict appeared in a hearing volume published last month on Fiscal Year 2017 Budget Request for Department of Defense Nuclear Forces, March 2, 2016, which also contains material of interest on nuclear weapons modernization programs, projected costs, and other policy matters.

Related issues were also discussed in another House Armed Services Committee hearing volume that was published last month. See U.S. Strategic Forces Posture, February 24, 2016.

Refugee Law and Policy Around the World

The Law Library of Congress last year prepared a survey of legal frameworks affecting refugees and asylum seekers in twenty-two countries around the world.

The survey covers “laws and regulations governing the admission of refugees and handling refugee claims; processes for handling refugees arriving at the border; procedures for evaluating whether an applicant is entitled to refugee status; the accommodations and assistance provided to refugees in the jurisdiction; requirements for naturalization; and whether asylum policy has been affected by international emergencies, such as the current refugee crisis in Europe.”

In practice, states “vary significantly in their receptivity to asylum seekers and the extent to which conflicting national policies affect adherence to norms prescribed in the [Geneva Convention on Refugees].”

See Refugee Law and Policy in Selected Countries, Law Library of Congress, March 2016.

Another Law Library report examines the diverse legal and regulatory regimes concerning the use of drones or unmanned aerial systems in twelve countries and the European Union. See Regulation of Drones, Law Library of Congress, April 2016.