Senator’s Challenge to War Powers Secrecy Blocked

Last January the Trump Administration formally notified Congress under the War Powers Act of a US drone strike that killed Iranian Maj. Gen. Qasem Soleimani.

But unlike all known prior War Powers Act notifications, the report on the Soleimani killing was classified in its entirety. (Previous reports sometimes included a classified annex together with the unclassified notification.)

Senator Chris Murphy (D-Conn.) said that was unacceptable. “There’s a veil being pulled over the foreign policy of this country,” he told the Washington Post. See “Six months later, Democrats keep working to unearth a big national security secret” by Greg Sargent, The Washington Post Plum Line, July 21, 2020.

Senator Murphy asked the White House to reconsider the classification. “It is critical that decisions regarding the use of force consistent with the War Powers Act be provided in unclassified form to the American people,” he wrote. He received no response.

So he turned to the Interagency Security Classification Appeals Panel (ISCAP), a group of executive branch agency representatives that is authorized by executive order to decide appeals of challenges to classification.

The initiative failed. Last month the ISCAP said that it would not consider such an appeal from Senator Murphy or from any other member of Congress.

The ISCAP refusal leaves the War Powers Act report on Soleimani fully classified and it keeps the public in the dark about the asserted legal and factual basis for killing him. But it highlights an important gap in classification policy that could be corrected in a new Administration and a new Congress.

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When information is classified improperly or unnecessarily, the opportunities for correcting such actions are quite limited.

A provision for government employees to formally challenge the classification of certain information was introduced in President Clinton’s 1995 executive order 12958 (section 1.9) and has remained in effect until the present (executive order 13526, section 1.8). The provision states:

“Authorized holders of information who, in good faith, believe that its classification status is improper are encouraged and expected to challenge the classification status of the information. . . .”

Importantly, this provision was not intended as a courtesy or a privilege. In fact, it was not intended for the sake of the challengers at all. Rather, the purpose of such classification challenges was to promote the integrity of the classification system and to help make the system self-correcting, as far as possible. That’s why potential challengers are “encouraged and expected” to present challenges even if they don’t personally care about the issue at all.

There were 954 such challenges in fiscal year 2016, according to the Information Security Oversight Office, and 167 of those resulted in the classification being overturned in whole or in part. In FY 2017, there were 721 challenges, 58 of which led to changes in classification.

No member of Congress had ever invoked this provision before. But Senator Murphy had some reason to believe that such a classification challenge could be effective in the case of the Soleimani war powers report.

The sticking point was the definition of “authorized holders of [classified] information,” who are the only ones that can present a classification challenge under the executive order.

One would suppose that a member of Congress who is in possession of a classified report that was officially provided to him or her by the executive branch would certainly qualify as an “authorized holder.” In fact, the executive branch has a binding legal obligation to provide certain classified defense and intelligence information to Congress.

But it turns out that the executive order (in section 6.1c) narrowly defines an “authorized holder of classified information” as one who has been vetted by an agency and found eligible for access. (Oddly, this limiting definition was only added in 2009.) Since Members of Congress are cleared for classified information by virtue of their office and do not undergo agency vetting, they are not “authorized persons” for purposes of the executive order.

This does not make any sense from a policy point of view. Just as executive branch employees and contractors are “encouraged and expected” to point out potential errors in classification, so should Members of Congress be, and for the same reasons.

But the classification challenge procedure is constrained by the language of the executive order, said Mark Bradley, director of the Information Security Oversight Office and executive secretary of the ISCAP.

“We have to do what the Order says, not what we want,” said Mr. Bradley, who early in his career served as an aide to Senator Daniel P. Moynihan.

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Mr. Bradley suggested that Senator Murphy could direct his challenge to the Public Interest Declassification Board, which unlike the ISCAP is specifically authorized to review congressional challenges to the classification of certain records.

But the PIDB is a much weaker body than the ISCAP. While the ISCAP can “decide” on classification challenges (subject to appeal), the PIDB can only review and “recommend.” And while the ISCAP has actually overturned existing classifications on numerous occasions, no PIDB recommendation has ever had the same effect.

The PIDB did previously handle one congressional request for declassification review, said John Powers of the ISOO and PIDB staff, in or around 2014. For the most part, the subject document in that case turned out to be properly classified, substantively and procedurally, in the PIDB’s view. But the Board forwarded a limited redaction proposal that would have allowed partial release to the Obama White House for consideration. The White House did not act on it.

Senator Murphy turned to the PIDB to request declassification review of classified intelligence concerning foreign interference in the upcoming US elections, the Washington Post reported yesterday.

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The statement by ISOO director Mark Bradley cited above — “We have to do what the Order says, not what we want” — is worth further consideration.

What he was saying is that those who are responsible for enforcing checks and balances have to follow a code of conduct and have to adhere to a set of principles, whether or not they personally agree with the outcome in a particular case.

The problem is that those who abuse the system to classify (or sometimes to selectively declassify) information improperly recognize no such constraint. This discrepancy is vexatious.

It means that the checks and balances of the current system are most effective when they are least necessary. When everyone is acting in good faith and with an honest commitment to shared (constitutional) values, most disagreements can be resolved over time. Some compromise is usually possible.

But when good faith and principled self-restraint are lacking, and one side aims to maximize its power at any cost, the current structure of checks and balances has proved to be largely helpless.

Even if the ISCAP had agreed to consider Senator Murphy’s classification challenge, and if it had actually agreed with him that all or part of the War Powers Act notification concerning the Soleimani killing was not properly classified, that might not have been the end of the story.

“Panel decisions are committed to the discretion of the Panel,” according to the executive order (sect. 5.3e), “unless changed by the President.” But that means that a hypothetical ISCAP decision to declassify the notification could be overruled by the same White House that classified the whole thing in the first place.

So while good policies are necessary, they are not enough. For our constitutional system of government to work, we also need officials who are, if not the “angels” that James Madison spoke of, at least dedicated public servants who share a common purpose.

Senator Murphy’s office said that he would soon introduce legislation to authorize and require the ISCAP to consider classification challenges from Congress.

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The current infrastructure for declassifying classified records that are no longer sensitive is already being overwhelmed by a deluge of historical records that are accumulating faster than they can be processed. This situation was discussed in a September 9 hearing before the Senate Select Committee on Intelligence and is the subject of new legislation (S. 3733) introduced by Senators Wyden and Moran.

That is an issue of efficiency and productivity that probably has a technological solution, as the Public Interest Declassification Board has argued.

A harder problem is over-classification, in which information is classified improperly or unnecessarily, or at a higher level than is warranted. Such classification errors can be corrected, at least hypothetically, through classification challenges, Freedom of Information Act requests, and other means.

A still harder problem concerns information that is properly classified — in the sense that it meets the criteria of the executive order — but nevertheless belongs in the public domain because of its fundamental policy importance. Examples include classified reports of torture, mass surveillance, or foreign election interference.

To the extent that such information is “properly classified” in a formal sense, it is currently beyond the reach of the Freedom of Information Act, mandatory declassification review, or classification challenges. When it does become public, that is often due to unauthorized disclosures. While agency heads may declassify classified information in the public interest as a matter of discretion (under section 3.1d of the executive order), they rarely do so and there is no mechanism for asking or inducing them to.

So along with adequate basic functionality and improved procedures for challenging improper classification, any future classification system also needs to tackle the problem of “properly classified” information that should not be classified.

Pentagon Seeks Authority to Recall More Retirees to Duty

The Department of Defense is asking Congress to expand its authority to recall retired members of the military to active duty in the event of a war or national emergency.

The DoD proposal predates the turmoil that followed the killing of George Floyd by a police officer in Minneapolis last week and the activation of National Guard units in numerous states.

Current law (10 USC 688a) permits the military to recall no more than 1,000 retirees in order “to alleviate a high-demand, low-density military capability” or when necessary “to meet wartime or peacetime requirements.” DoD wants to remove that 1,000 person limit.

“This proposal . . . would allow the Secretary of a military department to recall more than 1,000 retirees to active duty during a war or national emergency,” the Pentagon said in its May 4 request, which is one of numerous legislative proposals for the FY 2021 defense authorization act.

“Waiving the 1,000 member limitation on this temporary recall authority and the authority’s expiration date in time of war or of national emergency will increase the Department of Defense’s flexibility and agility in generating forces with the expertise required to respond rapidly and efficiently during such a period.”

“Given the unpredictability of war and national emergencies, such as the COVID 19 pandemic, waiver of the 1,000-member limit will better posture the Department to respond to unpredictable and rapidly evolving situations,” DoD said.

There is no reason to be concerned that such authority would ever be abused, the Pentagon told Congress, because “The Office of the Secretary of Defense will ensure the amount of recalled retirees does not exceed the number warranted by mission requirements.”

Last March, the US Army contacted more than 800,000 retired soldiers to inquire if they would be willing to assist with military’s pandemic response, according to a report in Military.com.

The Congressional Research Service summarized the constitutional and statutory authorities and limitations governing the military role in disaster relief and law enforcement in The Use of Federal Troops for Disaster Assistance: Legal Issues, November 5, 2012.

Air Force Calls for Expansion of Nevada Test Range

The US Air Force wants to renew and expand the withdrawal of public land for the Nevada Test and Training Range (NTTR), where it conducts flight testing, classified research and development projects, and weapons tests. A Defense Department proposal to Congress would increase the amount of land currently withdrawn from public use by more than 10 percent.

The NTTR is already “the largest contiguous air and ground space available for peacetime military operations in the free world,” according to a 2017 Air Force fact sheet.

But it’s not big enough to meet future requirements, the Pentagon told Congress in an April 17 legislative proposal.

“The land withdrawal that makes up the Nevada Test and Training Range (NTTR) expires in 2021. The NTTR is the Air Force’s most vital test and training asset and must be continued,” the DoD proposal said. But even more is needed, according to DoD: “Maintaining the status quo by simply extending the current withdrawal will not be sufficient to meet 5th generation requirements.”

“This proposal would expand the current withdrawal, enacted in the FY2000 NDAA and set to expire in 2021, and make that withdrawal for a period of 25 years.”

Approximately 300,000 acres of additional land would be withdrawn under the proposal, for a total of around 3.2 million acres that would be reserved “for use by the Secretary of the Air Force for certain military purposes.”

As of now, “The range occupies 2.9 million acres of land, 5,000 square miles of airspace which is restricted from civilian air traffic over-flight and another 7,000 square miles of Military Operating Area, or MOA, which is shared with civilian aircraft,” the 2017 USAF fact sheet said. “The 12,000-square-nautical mile range provides a realistic arena for operational testing and training aircrews to improve combat readiness. A wide variety of live munitions can be employed on targets on the range.”

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 pitspolitical 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.

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.

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.

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.

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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.

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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.

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 ContractsCRS 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 GenocideCRS In Focus, September 4, 2018

India: Religious Freedom Issues, updated August 30, 2018

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

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

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.”

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.