PCLOB Releases Its Oversight Agenda

The Privacy and Civil Liberties Oversight Board is conducting oversight in nearly a dozen areas broadly related to intelligence and counterterrorism. The PCLOB oversight agenda was detailed in a statement this week.

“This document describes the Board’s active oversight projects and other engagements. . . .The shorthand descriptions below are intended to provide public transparency, consistent with the protection of classified information and other applicable law,” the July 1 statement said.

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Meanwhile, the Department of Defense issued a new directive outlining how it will obtain and make use of public information. See DoD Access to and Use of Publicly Available Information (PAI), DoD Directive 3115.18, June 11, 2019.

The directive said that DoD will collect public information in an open and transparent way — except when it is authorized to employ deception.

As a general matter, “DoD personnel will not use false assertions of identity or organizational affiliation for official purposes to access, acquire, or use PAI without complying with cover policies . .  and other DoD guidance and issuances on the use of cover,” the directive said.

“Cover” is defined as “The concealment of true identity or organizational affiliation with assertions of false information as part of, or in support of, official duties to carry out authorized activities or lawful operations.”

DoD Doctrine on Nuclear Operations Published, Taken Offline

The Joint Chiefs of Staff briefly published and then removed from public access a new edition of their official doctrine on the use of nuclear weapons. But a public copy was preserved. See Joint Publication 3-72, Nuclear Operations, June 11, 2019.

The document presents an unclassified, mostly familiar overview of nuclear strategy, force structure, planning, targeting, command and control, and operations.

“Using nuclear weapons could create conditions for decisive results and the restoration of strategic stability,” according to one Strangelovian passage in the publication. “Specifically, the use of a nuclear weapon will fundamentally change the scope of a battle and create conditions that affect how commanders will prevail in conflict.”

The document might have gone unremarked, but after publishing it last week the Joint Chiefs deleted it from their public website. A notice there states that it (JP 3-72) is now only “available through JEL+” (the Joint Electronic Library), which is a restricted access site. A local copy remains publicly available on the FAS website.

DoD Says It Still Needs Open Burn Pits

The use of open pit burning for disposal of hazardous waste, medical waste, tires or plastic can present a threat to human health and safety, as well as causing other environmental damage. So as a rule, the practice is “strictly prohibited” by Department of Defense regulations.

But there are exceptions to the rule. And DoD continues to rely on open pit burning for waste disposal in some of its contingency operations abroad, according to a new DoD report to Congress.

Specifically, DoD identified a total of nine locations where open pit burning of waste continued this year: seven in Syria, one in Afghanistan, and one in Egypt. See Department of Defense Open Burn Pit Report to Congress, April 2019.

By way of justification, the DoD report said that “In countries such as Iraq, Syria, or Afghanistan it is common practice to burn waste in open pits.”

And while alternative approaches would be welcome, the Pentagon has other fish to fry. “The Department’s strategic investments are focused on providing a more lethal force, vice investment in costly support systems.”

“No technology or equipment solution has been devised that could eliminate all waste burning requirements for every contingency location,” the report to Congress said.

The new DoD report was obtained through the Freedom of Information Act. A provision of the pending FY2020 defense appropriations bill would require DoD in the future to “post on a public website any report required to be submitted to Congress with certain exceptions.”

Defense Contracting Fraud: A Persistent Problem

During the five year period from 2013-2017, there were 1,059 criminal cases of defense contracting fraud resulting in the conviction of 1,087 defendants, including 409 businesses, according to a newly released Department of Defense report to Congress. There were another 443 fraud-related civil cases resulting in judgments against 546 defendants.

During that same period, the Department of Defense entered into more than 15 million contracts with contractors who had been indicted, fined, and/or convicted of fraud, or who reached settlement agreements. The value of those contracts exceeded $334 billion, according to the DoD report. See Report on Defense Contracting Fraud, DoD report to Congress, December 2018.

The report was prepared in response to a requirement in the FY2018 defense authorization act at the initiative of Sen. Bernie Sanders. It was released this week under the Freedom of Information Act.

A previous report covering the period of 2001-2010 was produced by the Department of Defense in 2011, also at the request of Senator Sanders. The earlier report likewise found extensive fraud including criminal and civil offensive in defense contracting.

“Simply put, the Pentagon continues to be riddled with waste, fraud and abuse of taxpayer funds to a degree unmatched across the federal government,” Sen. Sanders said in 2017. “It is unacceptable that the Department of Defense continues to lose vast sums of taxpayer money because of fraud perpetrated by major defense contractors. This has got to end.”

The 2011 report listed dozens of defense contracting firms that had been convicted of criminal fraud, and hundreds more that had been subject to civil judgments.

The latest report names nine firms that were debarred or suspended but otherwise does not identify the criminal or civil defendants from the 2013-2017 period covered by the report. But much of this information can be gleaned from the Federal Contractor Misconduct Database (FCMD) maintained by the Project on Government Oversight.

Several recent instances of defense contractor fraud are described in the latest Semi-Annual Report from the Department of Defense Inspector General.

“Procurement fraud includes, but is not limited to, cost and labor mischarging, defective pricing, price fixing, bid rigging, and defective and counterfeit parts,” the DoD IG report said. “The potential damage from procurement fraud extends well beyond financial losses. This crime poses a serious threat to the DoD’s ability to achieve its objectives and can undermine the safety and operational readiness of the warfighter.”

Costs of War Add Up

“Since September 11, 2001, the Department of Defense (DoD) has obligated $1,534.8 billion for war-related costs,” according to a new Pentagon quarterly report.  See Cost of War Through December 31, 2018, FY 2019, 1st quarter.

The DoD report summarizes and categorizes spending patterns over the past two decades by operation (Iraq, Syria, Afghanistan), by year, by DoD component, and by amount appropriated. The report has been transmitted to the General Accounting Office, but it is otherwise not publicly distributed by the Department of Defense.

The validity of the DoD cost accounting in these periodic reports is questionable, and not only because they exclude the significant costs of health care for wounded personnel, reconstruction, and other war-related costs.

Several past DoD cost of war reports had “systemic problems,” were “inaccurate” and “unreliable,” the Department of Defense Inspector General found earlier this year. See Summary Audit of Systemic Weaknesses in the Cost of War Reports, DODIG-2019-066, March 22, 2019.

“Over the past three years, obligations for war spending have averaged $47 billion per year, mostly to fund the operating support costs of U.S. forces in and around Afghanistan,” according to a recent overview from the Congressional Research Service. See U.S. War Costs, Casualties, and Personnel Levels Since 9/11, CRS In Focus, April 18, 2019.

Meanwhile, the U.S. military last week issued updated doctrine on peace operations, which encompasses five distinct activities: conflict prevention, peacemaking processes, peace enforcement operations (PEO), peacekeeping operations (PKO), and peace building. See Peace Ops: Multi-Service Tactics, Techniques, and Procedures for Peace Operations, ATP 3-07.31, May 2, 2019.

Congress Members Speak Up for JASONs

The Department of Defense decision not to renew the underlying contract for the independent JASON scientific advisory panel drew criticism from a bipartisan, bicameral group of congressmen and senators.

“We believe that cancelling the JASON contract could damage our national security by depriving not only the Pentagon, but also other national security agencies, of sober and sound advice in confronting some of the Nation’s most complex threats,” the members wrote on May 3.

They noted that the National Nuclear Security Administration had recently intervened to sustain the JASONs for the coming year.

“However,” they wrote, “given the national security interests involved in cancellation of the JASON contract, a permanent solution must be found. We encourage you to work with NNSA and the other agencies that utilize JASON to find an appropriate long-term home for JASON, whether it be Research and Engineering, another office, such as Acquisition and Sustainment, or NNSA.”

If the JASONs’ current sponsor at Defense Research and Engineering is indifferent to or uninterested in the work of JASON, it would be pointless to compel continued sponsorship of the group there. But other agencies such as NNSA have an interest in preserving JASON, as does Congress itself.

“Members of Congress have long counted on their nonpartisan, independent, science-based advice to inform our decisions on a range of national security issues facing our nation, such as nuclear weapons, space, and emerging technologies,” the members wrote. They posed a series of questions about the Pentagon’s handling of the JASON contract and they asked the Acting Secretary of Defense to cooperate in resolving the issue.

Last week a Freedom of Information Act request for a copy of a 2016 JASON report entitled “Counterspace” was denied on appeal by the Defense Advanced Research Projects Agency. The unclassified JASON report is exempt from FOIA as deliberative material and because it contains arms export control information, DARPA said.

DoD Network Operations Face a Contested Environment

All US military operations depend on the Department of Defense information network (DODIN). But the network is under increasing stress both internally and from external threats.

“DODIN operations are arguably the most important and most complex type of operation the Army performs on a daily basis,” according to a new Army doctrinal publication. “The network is the foundational capability for all other Army warfighting functions and capabilities.”

But the foundational character of the DoD information network also makes it a target.

“Because communications are a key command and control enabler, U.S. military communications and information networks present high value targets for enemies and adversaries.”

The new Army publication “establishes non-prescriptive ways to perform missions, functions, and tasks associated with Department of Defense information network operations in Army networks to enable and support the Army’s mission at all echelons.” See Techniques for Department of Defense Information Network Operations, ATP 6-02.71, April 30, 2019.

To a certain extent the Army vision of the DoD information network is aspirational and does not correspond to current reality.

The actual network infrastructure is “antiquated and is failing at high rates,” Secretary of the Air Force Heather Wilson told the House Armed Services Committee last year in response to questions for the record in a newly published hearing volume.

Rising China Sells More Weapons

“In 2018, China’s arms sales increased, continuing a trend that enabled China to become the world’s fastest-growing arms supplier during the past 15 years,” according to the 2019 China Military Power report published by the Department of Defense. “From 2013 through 2017, China was the world’s fourth-largest arms supplier, completing more than $25 billion worth of arms sales.”

“Arms transfers also are a component of China’s foreign policy, used in conjunction with other types of military, economic aid, and development assistance to support broader foreign policy goals,” the Pentagon report said. “These include securing access to natural resources and export markets, promoting political influence among host country elites, and building support in international forums.”

Needless to say, the United States and other countries have long done the same thing, using arms exports as an instrument of foreign policy and political influence. Up to a point, however, US arms sales are regulated by laws that include human rights and other considerations. See U.S. Arms Sales and Human Rights: Legislative Basis and Frequently Asked QuestionsCRS In Focus, May 2, 2019.

To assist soldiers in identifying Chinese weapons in the field, the US Army has produced a deck of “playing cards” featuring various weapons systems.

“The Worldwide Equipment Identification Playing Cards enable Soldiers to be able to readily identify enemy equipment and distinguish the equipment from friendly forces. Cards can be used at every level and across all services.” See Worldwide Equipment Identification Cards: China Edition, US Army TRADOC, April 2019.

Pentagon Blocks Declassification of 2018 Nuclear Stockpile

For the first time in years, the Department of Defense has denied a request to declassify the current size of the U.S. nuclear weapons stockpile.

“After careful consideration. . . it was determined that the requested information cannot be declassified at this time,” wrote Andrew P. Weston-Dawkes of the Department of Energy in a letter conveying the DoD decision not to disclose the number of warheads in the U.S. arsenal at the end of Fiscal Year 2018 or the number that had been dismantled.

The Federation of American Scientists had sought declassification of the latest stockpile figures in an October 1, 2018 petition. It is this request that was denied.

Because the current size of the U.S. nuclear stockpile constitutes so-called “Formerly Restricted Data,” which is a classification category under the Atomic Energy Act, its declassification requires the concurrence of both the Department of Energy and the Department of Defense. In this case, DOE did not object to declassification but DOD did.

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The size of the current stockpile was first declassified in 2010. It was one of a number of breakthroughs in open government that were achieved in the Obama Administration. (Until that time, only the size of the historic stockpile through 1961 had been officially disclosed, which was done in 1993.)

“Increasing the transparency of our nuclear weapons stockpile, and our dismantlement, as well, is important to both our nonproliferation efforts and to the efforts we have under way to pursue arms control that will follow the new START treaty,” said a Pentagon official at a May 2010 press briefing on the decision to release the information.

In truth, the size of the U.S. nuclear stockpile was not such a big secret even when it was classified. Before the 2009 total of 5,113 warheads was declassified in 2010, Hans Kristensen and Robert Norris of FAS had estimated it at 5,200 warheads. Likewise, while the 2013 total turned out to be 4,804 warheads, their prior open source estimate was not too far off at 4,650 warheads.

But even if it is partly a formality, classifying stockpile information means that officials cannot publicly discuss it or be effectively questioned in public about it.

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But why now? Why is the Pentagon reverting to the pre-Obama practice of keeping the total stockpile number and the number of dismantled weapons classified? Why could the FY 2017 total (3,822 warheads) be disclosed, while the FY 2018 total cannot?

No reason was provided in the latest denial letter, and none of the decision makers was available to explain the rationale behind it.

But another official said the problem was that one of the main purposes of the move to declassify the stockpile total — namely, to set an example of disclosure that other countries would follow — had not been reciprocated as hoped.

“Stockpile declassification has not led to greater openness by Russia,” the official said.

“Anyway, it’s not a bilateral world anymore,” he said. And so DoD would also be looking for greater transparency from China than has been realized up to now.

Have new U.S. nuclear weapons programs played a role in incentivizing greater secrecy? “I doubt it,” this official said. “If anything, it’s the reverse. The US government has a motive to make it clear where it’s headed.”

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“I think we should have more communication with Russia,” said U.S. Army Gen. Curtis Scaparrotti, the retiring Supreme Allied Commander Europe. “It would ensure that we understand each other and why we are doing what we’re doing.”

But for now, that’s not the direction in which things are moving, and not only with respect to stockpile secrecy. See “US-Russia chill stirs worry about stumbling into conflict” by Robert Burns, Associated Press, April 14.

Pentagon Cancels Contract for JASON Advisory Panel

Updated below

In a startling blow to the system of independent science and technology advice, the Department of Defense decided not to renew its support for the JASON defense science advisory panel, it was disclosed yesterday.

“Were you aware that [the JASON contract] has been summarily terminated by the Pentagon?”

That was one of the first questions asked by Rep. Jim Cooper, chair of the House Armed Services Committee Strategic Forces Subcommittee, at a hearing yesterday (at about 40’20”).

NNSA Administrator Lisa Gordon-Hagerty replied that she was aware that the Pentagon had taken some action, and said that she had asked her staff to find out more. She noted that NNSA has an interest in maintaining the viability of the JASON panel, particularly since “We do have some ongoing studies with JASON.”

In fact, JASON performs technical studies for many agencies inside and outside of the national security bureaucracy and it is highly regarded for the quality of its work.

So why is the Pentagon threatening its future?

Even to insiders, the DoD’s thought process is obscure and uncertain.

“To understand it you first have to understand the existing contract structure,” one official said. “This is a bit arcane, but MITRE currently has an Indefinite Delivery / Indefinite Quantity (IDIQ) contract with the Office of the Secretary of Defense (OSD), the purpose of which is to manage and operate the JASON effort. However, you don’t actually do anything with an IDIQ contract; rather, the purpose of the IDIQ contract [is to] have Task Orders (TO’s) placed on it. These TO’s are essentially mini-contracts in and of themselves, and all the actual work is performed according to the TO’s. This structure allows any government agency to commission a JASON study; conceptually, all you need to do is just open another TO for that study. (The reality is slightly more complicated, but that’s the basic idea).”

“The underlying IDIQ contract has a 5-year period of performance, which just expired on March 31. Last November, OSD started the process of letting a new 5-year IDIQ contract with essentially the same structure so that the cycle could continue. They decided to compete the contract, solicited bids, and were going to announce the contract award in mid-March. Instead, what happened is that about two weeks ago (March 28, two days before the expiration of the existing IDIQ contract) they announced that they were canceling the solicitation and would not be awarding another contract at all. Instead, they offered to award a single contract for a single study without the IDIQ structure that allows other agencies to commission studies.”

But “I do not know the reason” for the cancellation, the official said.

And so far, those who do know are not talking. The Office of the Under Secretary of Defense (Research and Engineering) “would not answer any questions or discuss the matter in any way whatsoever.”

The news was first reported in “Storied Jason science advisory group loses contract with Pentagon” by Jeffrey Mervis and Ann Finkbeiner in Science magazine, and was first noticed by Stephen Young.

The JASON panel has performed studies (many of which are classified) for federal agencies including the National Nuclear Security Administration, the Central Intelligence Agency and the National Reconnaissance Office, as well as the Census Bureau and the Department of Health and Human Services.

Lately, the Department of Agriculture denied a Freedom of Information Act request for a copy of a 2016 JASON report that it had sponsored entitled “New Techniques for Evaluating Crop Production.” The unclassified report is exempt from disclosure under the deliberative process privilege, USDA lawyers said. That denial is under appeal.

The Pentagon move to cancel the JASON contract appears to be part of a larger trend by federal agencies to limit independent scientific and technical advice. As noted by Rep. Cooper at yesterday’s hearing, the Navy also lately terminated its longstanding Naval Research Advisory Committee.

Update, 4/25/19: National Public Radio and Defense News reported that the National Nuclear Security Administration has posted a solicitation to take over the JASON contract from the Department of Defense.