Congress

Posted on Dec.23, 2019 in Congress, transparency by

Many Reports to Congress May Go Online

Many of the hundreds or thousands of reports that are submitted to Congress by executive branch agencies each year may be published online pursuant to a provision in the new Consolidated Appropriations Act (HR 1158, section 8092).

That provision states that any agency that is funded by the Act shall post on its website any report to Congress “upon the determination by the head of the agency that it shall serve the national interest.”

The impact of the latter condition is unclear, particularly since no criteria for satisfying the national interest are defined. In any case, reports containing classified or proprietary information would be exempt from publication online, and publication of all reports would be deferred for at least 45 days after their receipt by Congress, diminishing their relevance, timeliness and news value.

Reports to Congress often contain new information and perspectives but they are an under-utilized resource particularly because they are not readily available.

Some otherwise unpublished 2019 reports address, for example, DoD use of open burn pits, political boycotts of Israel, and the financial cost of war post-9/11.

The newly enacted FY2020 national defense authorization act alone includes hundreds of new, renewed, or modified reporting requirements, according to an unofficial tabulation.

Posted on Jan.17, 2019 in accountability, Arms Control, ballistic missiles, Congress, Drones, ICBM, Missile Defense, Nuclear, Nuclear Weapons, Satellite, Space by and

Mixed Messages On Trump’s Missile Defense Review

By Matt Korda and Hans M. Kristensen

President Trump personally released the long-overdue Missile Defense Review (MDR) today, and despite the document’s assertion that “Missile Defenses are Stabilizing,” the MDR promotes a posture that is anything but.

Firstly, during his presentation, Acting Defense Secretary Shanahan falsely asserted that the MDR is consistent with the priorities of the 2017 National Security Strategy (NSS). The NSS’ missile defense section notes that “Enhanced missile defense is not intended to undermine strategic stability or disrupt longstanding strategic relationships with Russia or China.” (p.8) During Shanahan’s and President Trump’s speeches, however, they made it clear that the United States will seek to detect and destroy “any type of target,” “anywhere, anytime, anyplace,” either “before or after launch.” Coupled with numerous references to Russia’s and China’s evolving missile arsenals and advancements in hypersonic technology, this kind of rhetoric is wholly inconsistent with the MDR’s description of missile defense being directed solely against “rogue states.” It is also inconsistent with the more measured language of the National Security Strategy.

Secondly, the MDR clearly states that the United States “will not accept any limitation or constraint on the development or deployment of missile defense capabilities needed to protect the homeland against rogue missile threats.” This is precisely what concerns Russia and China, who fear a future in which unconstrained and technologically advanced US missile defenses will eventually be capable of disrupting their strategic retaliatory capability and could be used to support an offensive war-fighting posture.

Thirdly, in a move that will only exacerbate these fears, the MDR commits the Missile Defense Agency to test the SM-3 Block IIA against an ICBM-class target in 2020. The 2018 NDAA had previously mandated that such a test only take place “if technologically feasible;” it now seems that there is sufficient confidence for the test to take place. However, it is notable that the decision to conduct such a test seems to hinge upon technological capacity and not the changes to the security environment, despite the constraints that Iran (which the SM-3 is supposedly designed to counter) has accepted upon its nuclear and ballistic missile programs.

Fourthly, the MDR indicates that the United States will look into developing and fielding a variety of new capabilities for detecting and intercepting missiles either immediately before or after launch, including:

  • Developing a defensive layer of space-based sensors (and potentially interceptors) to assist with launch detection and boost-phase intercept.
  • Developing a new or modified interceptor for the F-35 that is capable of shooting down missiles in their boost-phase.
  • Mounting a laser on a drone in order to destroy missiles in their boost-phase. DoD has apparently already begun developing a “Low-Power Laser Demonstrator” to assist with this mission.

There exists much hype around the concept of boost-phase intercept—shooting down an adversary missile immediately after launch—because of the missile’s relatively slower velocity and lack of deployable countermeasures at that early stage of the flight. However, an attempt at boost-phase intercept would essentially require advance notice of a missile launch in order to position US interceptors within striking distance. The layer of space-based sensors is presumably intended to alleviate this concern; however, as Laura Grego notes, these sensors would be “easily overwhelmed, easily attacked, and enormously expensive.”

Additionally, boost-phase intercept would require US interceptors to be placed in very close proximity to the target––almost certainly revealing itself to an adversary’s radar network. The interceptor itself would also have to be fast enough to chase down an accelerating missile, which is technologically improbable, even years down the line. A 2012 National Academy of Sciences report puts it very plainly: “Boost-phase missile defense—whether kinetic or directed energy, and whether based on land, sea, air, or in space—is not practical or feasible.” 

Overall, the Trump Administration’s Missile Defense Review offers up a gamut of expensive, ineffective, and destabilizing solutions to problems that missile defense simply cannot solve. The scope of US missile defense should be limited to dealing with errant threats—such as an accidental or limited missile launch—and should not be intended to support a broader war-fighting posture. To that end, the MDR’s argument that “the United States will not accept any limitation or constraint” on its missile defense capabilities will only serve to raise tensions, further stimulate adversarial efforts to outmaneuver or outpace missile defenses, and undermine strategic stability.

During the upcoming spring hearings, Congress will have an important role to play in determining which capabilities are actually necessary in order to enforce a limited missile defense posture, and which ones are superfluous. And for those superfluous capabilities, there should be very strong pushback.

Posted on Nov.29, 2018 in Congress, Dept of Defense by

DoD Says US, Turkey on a Collision Course

Turkey’s pending procurement of a Russian surface to air missile system would jeopardize its status in NATO, and disrupt other aspects of US military relations with that country, the Department of Defense told Congress.

“The U.S. Government has made clear to the Turkish Government that purchasing the S-400 [surface to air missile system] would have unavoidable negative consequences for U.S.-Turkey bilateral relations, as well as Turkey’s role in NATO,” DoD said in an unclassified summary of a classified report to Congress.

See DoD report to Congress on Status of the U.S. Relationship with the Republic of Turkey (unclassified summary), November 2018.

The report was obtained and reported by Bloomberg News. See “Turkey’s F-35 Role at Risk If It Buys From Russia, Pentagon Warns” by Tony Capaccio, November 28, 2018.

Posted on Nov.13, 2018 in Congress, Dept of Defense, transparency by

Next HASC Chair Sees Need for Greater DoD Transparency

Rep. Adam Smith (D-WA), the likely chair of the House Armed Services Committee in the next Congress, told congressional colleagues that enhancing national security transparency is among his top oversight priorities.

“Together, we have made strides on national security issues but much more must be done to conduct vigorous oversight of the Trump Administration and the Department of Defense,” he wrote in a November 8 letter to House Democrats, declaring his candidacy for HASC chairman.

“Specifically, we must look to eliminate inefficiency and waste at the DOD; boost oversight of sensitive military operations and ensure that the military works to avoid civilian casualties; protect our environmental laws nationwide; advance green technology in defense; take substantial steps to reduce America’s overreliance on nuclear weapons; and promote greater transparency in national security matters,” he wrote.

In an opinion column last month, Rep. Smith elaborated on the topic. He said the Trump Administration and the Pentagon had abused their secrecy authority with counterproductive results.

“The Defense Department under this administration [. . .] declared war on transparency in their earliest days on the job. On issue after issue, they have made conspicuous decisions to roll back transparency and public accountability precisely when we need it most,” he wrote, citing numerous examples of unwarranted secrecy.

A course correction is needed, he said.

“Candid discussion with Congress about military readiness, the defense budget, or deployments around the world; the release of general information about the effectiveness of weapons systems that taxpayers are funding; and many other basic transparency practices have not harmed national security for all the years that they have been the norm,” he wrote. “The efforts to further restrict this information are unjustified, and if anything, the recent policies we have seen call for an increase in transparency.”

See “The Pentagon’s Getting More Secretive — and It’s Hurting National Security” by Rep. Adam Smith, Defense One, October 28, 2018.

*    *    *

The mystery surrounding a classified US military operation called Yukon Journey was partially dispelled by a news story in Yahoo News.

“Even as the humanitarian crisis precipitated by Saudi Arabia’s more-than-three-year war in Yemen has deepened, the Pentagon earlier this year launched a new classified operation to support the kingdom’s military operations there, according to a Defense Department document that appears to have been posted online inadvertently.”

See “Pentagon launched new classified operation to support Saudi coalition in Yemen” by Sharon Weinberger, Sean Naylor and Jenna McLaughlin, Yahoo News, November 10.

*    *    *

The need for greater transparency in military matters will be among the topics discussed (by me and others) at a briefing sponsored by Sen. Jack Reed and the Costs of War Project at Brown University on Wednesday, November 14 at 10 am in 236 Russell Senate Office Building. A new report on the the multi-trillion dollar costs of post-9/11 US counterterrorism operations will be released.

Posted on Sep.06, 2018 in Congress, CRS, Oversight by

Reviving the Role of CRS in Congressional Oversight

The Congressional Research Service once played a prominent role in supporting oversight by congressional committees. Although that support has diminished sharply in recent years, it could conceivably be restored in a new Congress, writes former CRS analyst Kevin R. Kosar in a new paper.

In the past, CRS “closely assisted Congress in a myriad of major oversight efforts, including the Watergate investigation, the implementation of the Freedom of Information Act, and the Iran-Contra affair.”

But over time, Kosar writes, “CRS’ role in oversight declined due to various factors, most of which were out of its control. Congress changed. Congressional committees, particularly in the House of Representatives, lost capacity, and hyper-partisanism turned much oversight into political point-scoring rather than an exercise in governing that required expert assistance.”

See “The Atrophying of the Congressional Research Service’s Role in Supporting Committee Oversight” by Kevin R. Kosar, Wayne Law Review, vol. 64:149, 2018.

“CRS does not have to passively accept this fate,” said Kosar by email. His paper suggested various steps CRS could take to foster greater appreciation among committee leaders for the independent expertise CRS could provide.

CRS’s “raison d’être is to educate Congress, and it can engage its oversight and appropriations committees in a dialogue about the value of analysis and in-depth research. It can raise the issue of more extended oversight engagements and explain why they are valuable to Congress.”

“It is good for Congress, good for CRS staff, and good for the public to have nonpartisan experts more frequently and more deeply engaged in oversight,” he wrote.

Meanwhile, new and updated publications from CRS include the following.

Defense Primer: Lowest Price Technically Acceptable Contracts, CRS In Focus, September 4, 2018

Federal Role in U.S. Campaigns and Elections: An Overview, September 4, 2018

Securities Regulation and Initial Coin Offerings: A Legal Primer, updated August 31, 2018

The “Flores Settlement” and Alien Families Apprehended at the U.S. Border: Frequently Asked Questions, updated August 28, 2018

Turkey: Background and U.S. Relations, updated August 31, 2018

Cuba: U.S. Policy in the 115th Congress, updated September 1, 2018

U.N. Report Recommends Burmese Military Leaders Be Investigated and Prosecuted for Possible Genocide, CRS In Focus, September 4, 2018

India: Religious Freedom Issues, updated August 30, 2018

The Made in China 2025 Initiative: Economic Implications for the United States, CRS In Focus, updated August 29, 2018

Questioning Judicial Nominees: Legal Limitations and Practice, updated August 30, 2018

Posted on Jul.26, 2018 in Congress, Cyberwar, Military Doctrine by

Congress Urges Cyber Ops Against Russia, Others

Rebuking the Trump Administration for its “passivity,” Congress is pressing the Department of Defense to engage in “active defense” in cyberspace against Russia, China, North Korea and Iran.

A new provision in the conference report on the FY2019 national defense authorization act (sect. 1642) would “authorize the National Command Authority to direct the Commander, U.S. Cyber Command, to take appropriate and proportional action through cyberspace to disrupt, defeat, and deter systematic and ongoing attacks by the Russian Federation in cyberspace.” It would further “add authorizations for action against the People’s Republic of China, the Democratic People’s Republic of Korea, and the Islamic Republic of Iran.”

“The conferees have been disappointed with the past responses of the executive branch to adversary cyberattacks and urge the President to respond to the continuous aggression that we see, for example, in Russia’s information operations against the United States and European allies in an attempt to undermine democracy.”

“The administration’s passivity in combating this campaign. . . will encourage rather than dissuade additional aggression.”

“The conferees strongly encourage the President to defend the American people and institutions of government from foreign intervention,” the report language said.

The congressional report does not propose an actual cyber strategy, nor does it specify desired outcomes, or address unintended consequences.

Another provision in the new conference report says that the Department of Defense ought to be just as assertive and “aggressive” in cyberspace as it is elsewhere (sect. 1632).

“The conferees see no logical, legal, or practical reason for allowing extensive clandestine traditional military activities in all other operational domains (air, sea, ground, and space) but not in cyberspace,” the report said.

“It is unfortunate that the executive branch has squandered years in interagency deliberations that failed to recognize this basic fact and that this legislative action has proven necessary.”

“The conferees agree that the Department should conduct aggressive information operations to deter adversaries.”

Curiously, the report found it necessary to add that “the conferees do not intend this affirmation as an authorization of clandestine activities against the American people.”

In general, another provision (sect. 1636) states, the U.S. needs to be ready for war in cyberspace:

“It shall be the policy of the United States, with respect to matters pertaining to cyberspace, cybersecurity, and cyber warfare, the United States should employ all instruments of national power, including the use of offensive cyber capabilities, to deter if possible, and respond to when necessary, all cyber attacks or other malicious cyber activities of foreign powers that target United States interests with the intent to… cause casualties among United States persons or persons of United States allies; significantly disrupt the normal functioning of United States democratic society or government (including attacks against critical infrastructure that could damage systems used to provide key services to the public or government); threaten the command and control of the Armed Forces, the freedom of maneuver of the Armed Forces, or the industrial base or other infrastructure on which the United States Armed Forces rely to defend United States interests and commitments; or achieve an effect, whether individually or in aggregate, comparable to an armed attack or imperil a vital interest of the United States.”

Posted on Jul.17, 2018 in Congress, Intelligence, Oversight by

SSCI Requires Strategy for Countering Russia

In its new report on the FY 18-19 Intelligence Authorization bill, published today, the Senate Select Committee on Intelligence would require the Director of National Intelligence “to develop a whole-of-government strategy for countering Russian cyber threats against United States electoral systems and processes.”

As if to underscore the gulf in the perception of the Russian threat that separates President Trump and the US intelligence community, the Senate Intelligence Committee comes down firmly on the side of the latter, taking “Russian efforts to interfere with the 2016 United States presidential election” as a given and an established fact.

The Senate report describes numerous other provisions of interest on election security, classification policy, cybersecurity, and more.

The House Intelligence Committee published its report on the pending FY18-19 intelligence authorization bill earlier this month.

Posted on Jun.20, 2018 in Congress, state secrets privilege by

Secrecy About Secrecy: The State Secrets Privilege

The Justice Department has not reported to Congress on the government’s use of the state secrets privilege since 2011, the Department acknowledged this week, contrary to a policy promising regular reporting on the subject.

In a 2009 statement of policy and procedures concerning the state secrets privilege, then-Attorney General Eric Holder said that “The Department will provide periodic reports to appropriate oversight committees of Congress with respect to all cases in which the Department invokes the privilege on behalf of departments or agencies in litigation, explaining the basis for invoking the privilege.”

In April 2011, the first such report was produced. It was one of several steps that were “intended to ensure greater accountability and reliability in the invocation of the privilege. They were developed in the wake of public criticism concerning the propriety of the Government’s use of the state secrets privilege.”

But the first periodic report on the state secrets privilege has turned out to be the last.

In 2014, John Carlin of the Department’s National Security Division affirmed the policy during his confirmation. “I understand that the Department’s policy remains to provide periodic reports to appropriate oversight committees of Congress regarding invocations of the State Secrets Privilege in litigation, and the Department provided its initial report to Congress on April 29, 2011,” he told the Senate Intelligence Committee. “I believe that the Department plans to submit another report in the near future.”

But no such report was ever submitted.

“No records responsive to your request were located,” the Justice Department stated this week in response to a FOIA request for any subsequent reports.

While Congress could request and require such a report at any time, it has not done so. And because the 2009 Holder policy on state secrets was “voluntarily” adopted by the Justice Department in response to public controversy, there was nothing to stop the policy from being unilaterally abandoned.

Posted on Jun.04, 2018 in Congress, Dept of Defense, transparency by

Reading DoD Reports to Congress

The U.S. Department of Defense spent $11.3 billion on purchases abroad in 2015, including $1.6 billion worth of goods or services from the United Arab Emirates, according to a newly released DoD report to Congress.

The majority of foreign purchases by DoD were for fuel, services, construction and subsistence. The DoD report breaks down the total that was spent abroad by DoD in each of several dozen foreign countries.

See Purchases from Foreign Entities in FY2015, DoD report to Congress, June 2016 (released under FOIA May 2018).

Update: The June 2017 DoD report on purchases from foreign entities in FY 2016 is here. Reports from prior years can be found here.

DoD reports to Congress are often a significant source of official information and perspective on various aspects of U.S. military policy.

Most recently, DoD produced its required report on Civilian Casualties in Connection With United States Military Operations in 2017, June 1, 2018.

A few months ago, the Pentagon submitted an Interim Report on Organizational and Management Structure for the National Security Space Components of the Department of Defense, March 2018.

A report last year addressed Department of Defense Infrastructure Capacity, October 2017.

Public access to such reports is sporadic and often delayed. A bill pending in the House of Representatives would require the Government Publishing Office to post all such (unclassified) reports online. See Access to Congressionally Mandated Reports Act (HR 4631).

Posted on May.01, 2018 in Congress, Dept of Defense, Military Doctrine by

DoD Seeks New FOIA Exemption for Fourth Time

For the fourth year in a row, the Department of Defense has asked Congress to legislate a new exemption from the Freedom of Information Act in the FY2019 national defense authorization act for certain unclassified military tactics, techniques and procedures.

Previous requests for such an exemption were rebuffed or ignored by Congress.

The Defense Department again justified its request by explaining that a 2011 US Supreme Court decision in Milner v. Department of the Navy had significantly narrowed its authority to withhold such information under FOIA.

“Before that decision, the Department was authorized to withhold sensitive information on critical infrastructure and military tactics, techniques, and procedures from release under FOIA pursuant to Exemption 2,” DoD wrote in a legislative proposal that was transmitted to Congress on March 16 and posted online yesterday by the Pentagon’s Office of General Counsel.

“This proposal similarly would amend section 130e to add protections for military tactics, techniques, and procedures (TTPs), and rules of engagement that, if publicly disclosed, could reasonably be expected to provide an operational military advantage to an adversary.”

In a new justification added this year, DoD further argued that the exemption was needed to protect its cyber activities. “The probability of successful cyber operations would be limited with the public release of cyber-related TTPs. This [FOIA exemption] proposal would add a layer of mission assurance to unclassified cyber operations and enhance the Department of Defense’s ability to project cyber effects while protecting national security resources.”

New FOIA exemptions are often unpopular and are not always routinely approved by Congress, which has repeatedly dismissed this particular proposal.

DoD has circumscribed the proposed exemption in such a way as to limit its likely impact and to make it somewhat more palatable if it were ever adopted. It would not apply to all TTPs, many of which are freely disclosed online. It would require personal, non-delegable certification by the Secretary of Defense that exemption of particular information was justified. And it would include a balancing test requiring consideration of the public interest in disclosure of information proposed for exemption.

But many FOIA advocates said the proposal was nonetheless inappropriate. It “would undermine the FOIA, creating an unnecessary and overbroad secrecy provision at odds with FOIA’s goal of transparency and accountability to the public,” they wrote in a letter objecting to last year’s version of the proposal.