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.

Civilian Control of the Military, and More from CRS

The nomination of Gen. James Mattis to be Secretary of Defense will require a legislative waiver of the prohibition against appointing persons who have been on active duty in the military within the past seven years to the position of Secretary.

A new report from the Congressional Research Service takes a look at the underlying issue of civilian control of the military, and related concerns.

“Historically, the restriction relating to the prior military service of the Secretary of Defense appears to be a product of congressional concern about preserving the principle of civilian control of the military, a fundamental tenet underpinning the design and operation of the American republic since its inception in 1776, if not before,” the report says.

The report reviews the origins and background of this principle and then ventures an analysis of its application today.

“The public discussion surrounding the proposed nomination of General Mattis seems to be less about preserving the principle of civilian control of the military (although that is certainly being debated), and more about civilian-military relations more generally.”

“Very few observers, if any, appear concerned that General Mattis, if appointed to the position of Secretary of Defense, will compromise the longstanding American tradition of ensuring that the military remains subordinate to the authority of civilian leaders. Instead, the possible appointment of General Mattis has served as a catalyst for a more wide-ranging discussion [of] the ways in which the U.S. military, civil society, and civilian leaders relate to each other,” CRS said. See Statutory Restrictions on the Position of Secretary of Defense: Issues for Congress, January 5, 2017.

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

Alien Registration Requirements: Obama Administration Removes Certain Regulations, but Underlying Statutory Authority Remains, CRS Legal Sidebar, January 5, 2017

Latin America and the Caribbean: Key Issues for the 114th Congress, updated January 4, 2017

The Budget Reconciliation Process: Stages of Consideration, updated January 4, 2017

Budget Reconciliation Measures Enacted Into Law: 1980-2010, updated January 4, 2017

Systemically Important or “Too Big to Fail” Financial Institutions, updated January 4, 2017

Temporary Assistance for Needy Families (TANF): Size of the Population Eligible for and Receiving Cash Assistance, January 3, 2017

Congressional Careers: Service Tenure and Patterns of Member Service, 1789-2017, updated January 3, 2017

Inspectors General in and Beyond the Presidential Transition Period, CRS Insight, January 3, 2017

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.