2017 Intelligence Bill Passes the House

The Director of National Intelligence shall “review the system by which the Government classifies and declassifies information” and shall “develop recommendations… to make such system a more effective tool… and to support the appropriate declassification of information.”

That’s just one of the many requirements included in the Fiscal Year 2017 Intelligence Authorization Act (in section 708) that was approved by the House of Representatives on November 30, following negotiations with the Senate.

The House and Senate Intelligence Committees also produced an Explanatory Statement that presents extensive “unclassified congressional direction” on all kinds of intelligence policy matters high and low.

The joint Statement, included in the Congressional Record, notably adopts House language on reforming the pre-publication review requirement that current and former intelligence community employees (and certain others) must comply with. The Statement requires the DNI to “issue an IC-wide policy regarding pre-publication review” within 180 days that includes various specified elements that should improve the timeliness, clarity, and fairness of the review process.

The intelligence bill was crafted in response to Obama Administration policies and, in all likelihood, in anticipation of a Hillary Clinton Administration. But assuming that it is enacted into law, it will come into full effect in a Trump Administration of uncertain character and composition.

“There are many unknowns about the incoming administration, particularly how it will utilize and interact with the IC,” said Rep. Adam Schiff (D-CA), the Ranking Member of the House Intelligence Committee.

“It is now more important than ever that we give the IC the tools it needs to keep us safe and provide the necessary oversight required to ensure that they act in a manner consistent with our values and at all times,” he said on the House floor.

The Library of Alexandria and the Library of Congress

The great Library of Alexandria was renowned in antiquity as a repository of all accessible knowledge that aimed “to collect, if possible, all the books in the world” (according to the 2nd century BCE Letter of Aristeas). Until its destruction, perhaps at the hands of Julius Caesar, the Library reflected and helped to generate a transforming wave of inquiry and enlightenment throughout the ancient world.

Our own Library of Congress is today the largest library in the world and, at least notionally, it has comparably grand ambitions.

Its declared mission is “to develop qualitatively the Library’s universal collections, which document the history and further the creativity of the American people and which record and contribute to the advancement of civilization and knowledge throughout the world, and to acquire, organize, provide access to, maintain, secure, and preserve these collections.”

Yet the Library has been allowed to languish behind rapid changes in information technology and knowledge management.

Google Books, for example, which provides online access to millions of volumes in dozens of languages, has leapfrogged over the Library of Congress in significant respects.

The Library has the institutional potential to match and exceed that achievement, given the requisite resources and leadership, but it is in a precarious state.

“The next Librarian of Congress will lead an organization that has really had significant physical and technological limitations and is struggling to adapt to a new century,” said Sen. Roy Blunt (R-MO) at the recent confirmation hearing for Dr. Carla D. Hayden to be the Librarian of Congress. “Due to the historic shortage of storage space, the library has millions of items stored improperly and needs to find a better way to store them. There is risk of degradation of some of the collection.”

“In addition, recent information technology management challenges have raised questions about the Library’s ability to serve future generations as more and more collections need to be digitally collected, preserved and made available to the public,” he said.

Asked her views about allowing public access to reports of the Congressional Research Service, which is a component of the Library of Congress, Dr. Hayden said this was a decision for Congress to make.

“The extent to which CRS products are viewed, shared, used, or disseminated beyond the legislative branch are questions beyond the purview and mission of CRS. Ultimately, the questions are legislative. As Congress seeks to answer them, and if I am confirmed, I intend to play a constructive role in the process,” she said.

Update: On July 13 the Senate confirmed the nomination of Dr. Carla D. Hayden to be the 14th Librarian of Congress.

The Right to Remain Silent Around the World

The Miranda warning advising detained persons that they have the right to remain silent has counterparts in the legal systems of 108 countries or jurisdictions around the world. These were collected and described in a new staff study performed for the Law Library of Congress.

“The warnings specified in the surveyed jurisdictions vary, but typically include the right to remain silent and the right to legal counsel. A number of countries also specify that a person who is arrested or detained has the right to be informed of the reasons for the arrest or detention or of the charges being brought,” the study said.

See Miranda Warning Equivalents Abroad, Staff of the Law Library of Congress Global Legal Research Center, May 2016.

In Kiribati, “the police officer may ask the suspect to explain the meaning of the caution in his or her own words” to ensure that the suspect understands the matter correctly, the report said.

2017 Intelligence Bill Would Constrain Privacy Board

The jurisdiction of the Privacy and Civil Liberties Oversight Board (PCLOB) would be restricted for the second year in a row by the Senate Intelligence Committee version of the FY2017 Intelligence Authorization Act (S.3017). Section 603 of the Act would specifically limit the scope of PCLOB’s attention to the privacy and civil liberties “of United States persons.”

Internal disagreements over the move were highlighted in the Committee report published last week to accompany the text of the bill, which was reported out of Committee on June 5.

“While the PCLOB already focuses primarily on U.S. persons, it is not mandated to do so exclusively,” wrote Senators Martin Heinrich and Mazie K. Hirono in dissenting remarks appended to the report. “Limiting the PCLOB’s mandate to only U.S. persons could create ambiguity about the scope of the PCLOB’s mandate, raising questions in particular about how the PCLOB should proceed in the digital domain, where individuals’ U.S. or non-U.S. status is not always apparent. It is conceivable, for example, that under this restriction, the PCLOB could not have reviewed the NSA’s Section 702 surveillance program, which focuses on the communications of foreigners located outside of the United States, but which is also acknowledged to be incidentally collecting Americans’ communications in the process,” they wrote.

“Over the past three years, the Privacy and Civil Liberties Oversight Board has done outstanding and highly professional work,” wrote Sen. Ron Wyden in his own dissent. “It has examined large, complex surveillance programs and evaluated them in detail, and it has produced public reports and recommendations that are quite comprehensive and useful. Indeed, the Board’s reports on major surveillance programs are the most thorough publicly available documents on this topic. My concern is that by acting to restrict the Board’s purview for the second year in a row, and by making unwarranted criticisms of the Board’s staff in this report, the Intelligence Committee is sending the message that the Board should not do its job too well.”

In support of the provision, the report said that “The Committee believes it is important for the Board to consider the privacy and civil liberties of U.S. Persons first and foremost when conducting its analysis and review of United States counterterrorism efforts.”

But the PCLOB already considers U.S. person privacy “first and foremost.” And the language of the Senate bill does not appear to permit even “secondary” consideration of the privacy of non-U.S. persons. Last year, the FY2016 intelligence authorization bill barred access by the Board to information deemed relevant to covert action.

On June 16, Sen. Patrick Leahy paid tribute to retiring PCLOB chair David Medine on the Senate floor. “[PCLOB] reports and Mr. Medine’s related testimony before the Senate Judiciary Committee have been tremendously beneficial to Congress and the American people in examining government surveillance programs,” he said.

Congress Passes FOIA Improvement Act

The House of Representatives yesterday approved the Freedom of Information Act Improvement Act, which had previously been adopted by the Senate. If signed by President Obama, as expected, it will strengthen several provisions of the FOIA and should enhance disclosure of government records.

The bill “reaffirms the public’s right to know and puts in place several reforms to stop agencies from slowly eroding the effectiveness of using FOIA to exercise that right,” said Rep. Mark Meadows (R-NC).

“The most important reform is the presumption of openness,” according to Rep. Meadows. “Before claiming an exemption [from disclosure under FOIA], agencies must first determine whether they could reasonably foresee an actual harm.”

“The bill would also put a 25-year sunset on exemption 5 of FOIA, the deliberative process exemption,” added Rep. Carolyn Maloney (D-NY). “It would modernize FOIA by requiring the Office of Management and Budget to create a central FOIA Web site for requesters to submit their request, making it more efficient and accessible to the public.”

“This bill would strengthen the independence and the role of the Office of Government Information Services [the FOIA ombudsman]. OGIS has served a critical role since it was formed in response to the last FOIA reform Congress adopted in 2007,” she noted.

The bill does not address structural challenges facing FOIA, which is designed to serve individual requesters, not the public as a whole. Nor does the bill provide any additional resources for implementing FOIA, which currently consumes hundreds of millions of dollars per year with ambiguous results.

“We have a whole process and money and people devoted to FOIA and I just don’t think it’s getting to the heart of what FOIA’s about,” said Meredith Fuchs, former General Counsel of the Consumer Financial Protection Bureau, last March. “I don’t think it’s the real way to keep government accountable.”

Such criticism from a government official would be unremarkable, except that Ms. Fuchs used to be a litigator for FOIA requesters against government agencies (and years ago she contributed an amicus brief for one of my own lawsuits). She spoke at a fascinating session of the Freedom of Information Day 2016 conference at the Newseum that featured former non-governmental FOIA advocates who have gone into government service.

Tom Blanton of the National Security Archive presented a ringing endorsement of the FOIA’s efficacy as a tool for government accountability at a recent Columbia Law School conference on the fiftieth anniversary of FOIA (beginning around the 50′ mark).

Passage of the FOIA Improvement Act was hailed yesterday by Senator Patrick Leahy, the National Security Archive, Openthegovernment.org, the Project on Government Oversight, and the Sunshine in Government Initiative, among other supporters of the measure.

SSCI Bill Adopts Fundamental Classification Review

The Fundamental Classification Guidance Review (FCGR) that was launched by President Obama’s 2009 executive order 13526 would be written into statute by the Senate Select Committee on Intelligence in its version of the FY intelligence authorization act (S. 3017), released this week.

The FCGR has become the primary mechanism for systematically updating agency classification rules and deleting obsolete secrecy requirements. Performed every five years, it entails the review of thousands of individual classification guides. After the first FCGR in 2012, hundreds of such guides were eliminated.

“A reasonable outcome of the review overall, though not necessarily in the case of each program or guide, is to expect a reduction in classification activity across government,” wrote William Cira, acting director of the Information Security Oversight Office, in a March 17 memo to agencies initiating the second FCGR, which is to conclude by June 2017.

The FCGR can advance “our shared goals for greater openness and reduced classification activity while protecting legitimate national security interests,” wrote DNI James Clapper in a March 23 addendum, embracing the FCGR and adding some new requirements to it.

The Senate bill (section 809) does not modify the existing FCGR process, but would enshrine it in statute.

The new bill includes several other reporting requirements that appear uncommonly assertive, if not intrusive. For example, the Committee would expect the Privacy and Civil Liberties Oversight Board to keep it informed of all the Board’s activities, “including any significant anticipated activities.” The Committee would require submission of copies of all memoranda of understanding between U.S. intelligence agencies. And the Committee would require notification of all classified and unclassified presidential directives to intelligence agencies, and their implementation.

In short, the bill would reset the terms of the congressional intelligence oversight relationship, seemingly dispensing with comity and imposing mandatory disclosure to Congress of various categories of records. Executive branch resistance may be anticipated.

For the first time in living memory, the SSCI bill was reported out of Committee on June 6 without a written report to publicly explain and expand upon its provisions. (Update: The Committee report on the bill was published on June 15.) It did, however, include a classified annex.

Congress Isn’t Helping to “Rebuild” CRS

Most public controversy concerning the Congressional Research Service revolves around the question of whether Congress should authorize CRS to make its reports publicly available, or whether unauthorized access to CRS reports is a satisfactory alternative.

But a more urgent question is whether CRS itself will survive as a center of intellectual and analytical vitality. Already many of its most deeply knowledgeable and experienced specialists have been lost to retirement or attrition. And recurring budget shortfalls are taking a toll, say congressional supporters.

“According to CRS, recent funding levels have led to a loss of 13 percent of its purchasing power since 2010. The $1 million increase [proposed in the House version of the FY2017 Legislative Appropriations Act] will not even cover mandatory pay for CRS’ current staff,” wrote Reps. Nita Lowey and Debbie Wasserman Schultz in dissenting views attached to the House Appropriations Committee report on the FY 2017 bill.

“CRS’s [FY2017] budget request sought to rebuild the agency. They asked for two defense policy staff, five health policy staff, three education policy staff, two budget/appropriations staff, four technology policy staff, and two data management and analysis staff. None of those staff would be funded under the current bill, depriving Congress of a non-biased analysis of these critical policy areas,” Reps. Lowey and Wasserman Schultz wrote.

New and updated reports from the Congressional Research Service last week included the following.

OSHA Rule Makes Workplace Injury and Illness Data Publicly Available, CRS Legal Sidebar, May 25, 2016

Status of the Ebola Outbreak in West Africa: Overview and Issues for Congress, May 25, 2016

Navy Lasers, Railgun, and Hypervelocity Projectile: Background and Issues for Congress, updated May 25, 2016

Navy Aegis Ballistic Missile Defense (BMD) Program: Background and Issues for Congress, updated May 26, 2016

Fact Sheet: FY2017 National Defense Authorization Act (NDAA) DOD Reform Proposals, May 25, 2016

Navy Irregular Warfare and Counterterrorism Operations: Background and Issues for Congress, updated May 25, 2016

Taliban Leadership Succession, CRS Insight, May 26, 2016

Who is a “Veteran”? — Basic Eligibility for Veterans’ Benefits, updated May 25, 2016

Military Funeral Honors for Veterans, May 25, 2016

Pre-Publication Review Must Be Timely & Fair, Says HPSCI

Current and former intelligence community employees (as well as some other government employees) are obliged to submit their writings for official review prior to publication in order to screen them for classified information. This is often an onerous, time-consuming and frustrating process. It sometimes appears to authors to be conducted in bad faith.

The House Permanent Select Committee on Intelligence has instructed the Director of National Intelligence to prepare a new, IC-wide pre-publication review policy that will “yield timely, reasoned, and impartial decisions that are subject to appeal.”

In its new report on the FY2017 intelligence authorization act, the Committee said it “is concerned that current and former IC personnel have published written material without completing mandatory pre-publication review procedures or have rejected changes required by the review process, resulting in the publication of classified information.”

“The Committee is also aware of the perception that the pre-publication review process can be unfair, untimely, and unduly onerous and that these burdens may be at least partially responsible for some individuals ‘opting out’ of the mandatory review process.”

The Committee therefore directed the DNI to develop a uniform new policy that clearly sets forth what kinds of materials must be reviewed, with guidance for conducting and completing the review in a timely manner, and with a prompt and transparent appeal process.

The pre-publication review process was critiqued recently by Jack Goldsmith and Oona A. Hathaway in the Washington Post (The Government’s Prepublication Review Process is Broken, December 25, 2015) and in Just Security (The Scope of the Prepublication Review Problem, and What to Do About It, December 30, 2015). I also commented in Just Security (Fixing Pre-Publication Review: What Should Be Done?, January 15, 2016).

The new requirement “to improve the timeliness and fairness of the prepublication review process throughout the IC” was introduced by Rep. Jim Himes (D-CT), a member of the House Intelligence Committee. The FY2017 intelligence authorization act was approved by the full House of Representatives yesterday following floor speeches on May 23.

HASC Favors Classified National Military Strategy

The forthcoming National Military Strategy, unlike previous versions of the Strategy, should be a classified document, the House Armed Services Committee (HASC) said in its markup of the FY2017 defense authorization bill.

Paradoxically, the Committee said that classifying the Strategy would enable increased disclosure of information– to the Committee, not to the public.

“The committee understands the importance of the Department publicly communicating its defense strategy to the American people, Congress, other U.S. Government agencies, and international partners and allies. However, the committee also recognizes that the classified assumptions and analysis underpinning the strategy, as well as the subsequent programming, budgeting, and contingency planning guidance that implement the strategy, are also important oversight tools for the committee and help to frame the annual budget request.” (Section 904)

“The committee believes that the NMS [National Military Strategy] should be re-focused to provide a strategic framework for the development of operational and contingency plans by the combatant commands, and to provide joint force and joint capability development guidance to guide resource investments by the military services.” (Section 905)

“To provide such guidance, the committee believes that the NMS should be a classified document,” the Committee markup said.

The Chairman of the Joint Chiefs of Staff, Gen. Joseph Dunford, recently stated that the next National Military Strategy will in fact be classified, as the House Armed Services Committee desires.

The House Committee did not adopt a DoD proposal for a new exemption from the Freedom of Information Act for certain military tactics, techniques and procedures, as well as rules of engagement, that are unclassified but considered sensitive. The proposed FOIA exemption was excluded from the pending bill without comment.

Recent DoD policy and doctrinal publications of interest to some include the following.

Management of DoD Irregular Warfare (IW) and Security Force Assistance (SFA) Capabilities, DoD Instruction 3000.11, May 3, 2016

DoD Nuclear Weapons Personnel Reliability Assurance, DoD Instruction 5210.42, April 27, 2016

DoD Identity Matching Engine for Security and Analysis (IMESA) Access to Criminal Justice Information (CJI) and Terrorist Screening Databases (TSDB), DoD Instruction 5525.19, May 4, 2016

Department of the Army Polygraph Activities, Army Regulation 195-6, April 21, 2016

Questions for the Record: Arctic Camouflage

The camouflage netting used by the U.S. Army in the Arctic region is obsolete and ineffective, Army officials told Congress in response to a question for the record in a newly published hearing volume.

“The existing Arctic camouflage system has not been upgraded since its inception in the mid-1970s. The Army’s current camouflage system, the Ultra-Lightweight Camouflage Net System (ULCANS) was developed in the late 1990s and only included Woodland and Desert patterns. Due to improvements in technology, these variants are now ineffective against current and emerging advanced sensor threats and are in need of updates,” the officials said.

“The next-generation ULCANS capabilities add three new variants (Arctic, Urban, and Aviation) and upgrade the existing systems (Woodland and Desert). The next-generation ULCANS will provide concealment from visual, near infrared, short-wave infrared through long-wave infrared, ultraviolet, radar, and multi-spectral/hyper-spectral detection.”

“Ultimately,” but not yet, “these systems will provide U.S. forces detection avoidance and sensor defeat capabilities as a low-cost force multiplier,” they said in response to the question submitted by Sen. Dan Sullivan (R-AK). See FY2016 Defense Authorization: Airland, Senate Armed Services Committee, March 19, 2015 (published April 2016), at page 95.

Questions for the record (QFRs) constitute a valuable though unpredictable and often neglected genre. At their best, they serve to elicit new information in response to focused, sometimes unwelcome questions. The House and Senate Armed Services Committees are now among the most interesting practitioners of the form. Senate Intelligence Committee hearing volumes used to be a must-read for their QFRs alone, but that Committee ceased publishing them over a decade ago.