Suppressed Afghanistan War Data Now Published

In January, the Department of Defense ordered the Special Inspector General for Afghanistan Reconstruction (SIGAR) not to publish certain data on areas of Afghanistan that were held by insurgents.

“This development is troubling for a number of reasons, not least of which is that this is the first time SIGAR has been specifically instructed not to release information marked ‘unclassified’ to the American taxpayer,” the SIGAR said in its January 2018 report to Congress.

But the Department of Defense soon reversed course, saying it was an error to withhold that information.

Last week, the SIGAR published an addendum to its January report that provided the previously suppressed data. In addition, a detailed control map and the underlying data for each of Afghanistan’s 407 districts were declassified and published. See Addendum to SIGAR’s January 2018 Quarterly Report to the United States Congress, February 26, 2018.

The basic thrust of the new data is that Afghan government control of the country is at its lowest reported level since December 2015, while insurgency control is at its highest.

“The percentage of districts under insurgent control or influence has doubled since 2015,” the SIGAR addendum said.

Budget Law May “Neuter” Intelligence Oversight

The new budget law that keeps the government open for the next three weeks includes a provision that would permit the transfer and spending of intelligence funds during that period without congressional authorization or approval.

“This language is troublesome for the [Senate intelligence] committee because it would authorize the intelligence community to spend funds ‘notwithstanding’ the law that requires prior authorization by the Senate Intelligence Committee or by the House Intelligence Committee,” said intelligence committee chairman Sen. Richard Burr on Monday.

“Effectively, the intelligence community could expend funds as it sees fit without an authorization bill in place.”

“Let me just say to my colleagues, a situation like this is untenable,” Sen. Burr said. “If you neuter the committee, you neuter our oversight.”

But efforts by Senator Burr and committee vice chairman Senator Mark Warner to modify the provision were blocked by Appropriations Committee chairman Sen. Thad Cochran. He said the controversial language “is included exactly as requested by the administration” and with his support the budget measure was enacted into law.

The provision was first reported last week by Ryan Grim in The Intercept.

The override of normal oversight requirements was requested by the Office of Management and Budget at the urging of the Pentagon, the Washington Examinerreported. See “Provision in shutdown-ending bill stokes fear of oversight-free intelligence spending” by Steven Nelson, January 23, 2018,

An unnamed congressional staffer told the paper that the change mainly pertains to missile defense funds and “does not give the intelligence community a blank check at all.” The staffer also contended that it does not materially affect the role of the intelligence committees.

But the chairman and vice chairman disagree.

“For the next 3 weeks we will have an inability to exercise, in our estimation, the tools that we might need,” Senator Burr said.

US Air Force Updates Policy on Special Access Programs

The US Air Force last month issued updated policy guidance on its “special access programs” (SAPs). Those are classified programs of exceptional sensitivity requiring safeguards and access restrictions beyond those of other categories of classified information.

See Air Force Policy Directive 16-7Special Access Programs, 21 November 2017.

The new Air Force policy makes provisions for internal oversight of its SAPs, as well as limited congressional access to SAP information under some circumstances.

Notably, however, the new Air Force directive does not acknowledge the authority of the Information Security Oversight Office (ISOO) to review and oversee its SAPs.

That’s an error, said ISOO director Mark Bradley.

The executive order on national security classification (EO 13526, sect. 4.3) explicitly says that “the Director of the Information Security Oversight Office shall be afforded access to these [special access] programs.”

Mr. Bradley said that ISOO would communicate the point effectively to the Air Force.

Executive Branch Oversight, Here & There

Government oversight can take diverse forms even among Western democracies.

A new report from the Law Library of Congress surveys the mechanisms of parliamentary oversight of the executive branch in Canada, Germany, Italy, Japan, Poland, Sweden, the United Kingdom, and the United States.

In Sweden, for example, “Any member of the public may ask the JO [Justitieombudsman, or parliamentary ombudsman] to investigate a breach of law committed by an agency or employee. The complaint must be made in writing and cannot be anonymous.”

The Law Library report does not provide comparative analysis, but simply presents a descriptive summary of each nation’s government oversight practices, with links to additional resources. Any policy conclusions to be drawn are left to the reader.

See Parliamentary Oversight of the Executive Branch, Law Library of Congress, August 2017.

Senate Intelligence Authorization Report Filed

Do the security clearance procedures that are used for granting access to classified information actually serve their intended purpose?

To help answer that question, the Senate Intelligence Committee mandated a review of security clearance requirements, including “their collective utility in anticipating future insider threats.”

See the Committee’s new report on the Intelligence Authorization Act for Fiscal Year 2018, filed September 7, 2017.

The report summarizes the content of the pending intelligence authorization bill (S. 1761), which was filed last month, and adds Committee comments on various aspects of current intelligence policy.

So, for example, “The Committee remains concerned about the level of protection afforded to whistleblowers within the IC and the level of insight congressional committees have into their disclosures.”

The central point of contention in the bill is a provision (sec. 623) declaring a sense of Congress “that WikiLeaks and the senior leadership of WikiLeaks resemble a non-state hostile intelligence service often abetted by state actors and should be treated as such a service by the United States.”

The provision had originally stated that WikiLeaks and its leadership “constitute” a non-state hostile intelligence service. But this was amended to replace “constitute” with “resemble”. That move might have attenuated the provision’s significance except that it went on to say — whether WikiLeaks constitutes or merely resembles a non-state hostile intelligence service — that the U.S. should treat it as such.

A hostile state-based intelligence service would presumably be subject to intense surveillance by the US. A competent US counterintelligence agency might also seek to infiltrate the hostile service, to subvert its agenda, and even to take it over or disable it.

Whether such a response would also be elicited by “a non-state hostile intelligence service” is hard to say since the concept itself is new and undefined.

“The Committee’s bill offers no definition of ‘non-state hostile intelligence service’ to clarify what this term is and is not,” wrote Sen. Kamala Harris, who favored removal of this language, though she said WikiLeaks has “done considerable harm to this country.”

Sen. Ron Wyden, who likewise said that WikiLeaks had been “part of a direct attack on our democracy,” opposed the bill due to the WikiLeaks-related provision.

“My concern is that the use of the novel phrase ‘non-state hostile intelligence service’ may have legal, constitutional, and policy implications, particularly should it be applied to journalists inquiring about secrets,” Sen. Wyden wrote in minority views appended to the report. “The language in the bill suggesting that the U.S. government has some unstated course of action against ‘non-state hostile intelligence services’ is equally troubling.”

Number of New Secrets in 2016 At New Low

Last year executive branch agencies created the fewest new national security secrets ever reported, according to an annual report published today by the Information Security Oversight Office (ISOO).

The number of new secrets — or “original classification decisions” — was 39,240 in 2016, an all-time low. The previous low of 46,800 was set in 2014. By comparison, more than 230,000 new secrets a year were being generated a decade ago. Since such record-keeping began in 1980, the total number never dropped below 100,000 until 2012. See 2016 Annual Report to the President, Information Security Oversight Office, July 2017.

While interesting and welcome from an open government viewpoint, the reported reduction in new secrets cannot bear too much interpretive weight. The figures cited by ISOO represent a compilation of dozens of estimates provided by individual agencies, based on sampling methods that are inconsistent and not always reliable.

Moreover, this statistical approach to secrecy oversight implies that all classification decisions are of equal significance. In actuality, some secrets may be of profound importance — politically, morally, historically, or otherwise — while many other secrets (such as administrative or technical details) will have little or no public policy interest. A simple numerical count of the number of classification decisions does not capture their relative meaning or value.

Still, assuming that the uncertainties and the ambiguities in the data have been more or less constant over time, the reduction in new secrets to a record low level is likely to reflect a real reduction in the scope of national security secrecy in the Obama years.

Classification Costs at a Record High

Meanwhile, however, the annual costs incurred by the classification system reached record high levels in 2016, the ISOO report said.

“The total security classification cost estimate within Government for FY 2016 is $16.89 billion,” ISOO reported, compared to $16.17 billion the year before. Classification-related costs within industry were an additional $1.27 billion.

Classification Challenges

Because decisions to classify information often involve subjective judgments about the requirements of national security and the potential of particular information to cause damage, such decisions are sometimes disputed even within the government itself. The classification system allows for classification challenges to be filed by authorized holders of classified information who believe that the information is improperly classified.

Last year, there were 954 such classification challenges, the ISOO report said, about the same number as the year before. Classification of the information was overturned in only about 17% of those challenges, however, compared to over 40% that were overturned the year before.

The classification challenge procedure is a potentially important internal oversight mechanism that is not yet fully mature or widely utilized. For some reason, the majority of classification challenges (496) last year originated at US Pacific Command, while only a single one emerged from the Department of Justice. In fact, ISOO found that about a quarter of all agencies do not even have a classification challenge program, though they are supposed to.

If such challenges could be promoted and accepted as a routine element of classification practice, they could serve to invigorate classification oversight and to provide an useful internal self-check.

The ISOO annual report also presented new data on declassification activity, the Interagency Security Classification Appeals Panel, agency self-inspections, controlled unclassified information (CUI), and other aspects of national security information policy.

ISOO director Mark A. Bradley, whose tenure as director began this year, told the President that in the next reporting cycle, “ISOO will focus on improving our methodology in data collection and will begin planning and developing new measures for future reporting that more accurately reflect the activities of agencies managing classified and sensitive information.”

OLC Nominee: Every Member of Congress Can Do Oversight

The nominee to lead the Justice Department Office of Legal Counsel acknowledged that all members of Congress have the authority to conduct oversight of the executive branch, and that agencies have a responsibility to accommodate requests by members for information needed to perform their oversight function.

That might seem like a statement of the obvious. But the Office of Legal Counsel issued a controversial opinion earlier this year that took a much more limited view of congressional oversight power:

“The constitutional authority to conduct oversight — that is, the authority to make official inquiries into and to conduct investigations of executive branch programs and activities — may be exercised only by each house of Congress or, under existing delegations, by committees and subcommittees (or their chairmen),” the OLC opinion said. “Individual members of Congress, including ranking minority members, do not have the authority to conduct oversight in the absence of a specific delegation by a full house, committee, or subcommittee.”  See Authority of Individual Members of Congress to Conduct Oversight of the Executive Branch, Office of Legal Counsel, May 1, 2017.

Objecting to this narrow OLC conception of oversight, Sen. Chuck Grassley placed a hold on the nomination of Steven A. Engel to become the new Assistant Attorney General in charge of the OLC until Mr. Engel provided an acceptable response to Grassley’s concerns on the matter.

Yesterday, Senator Grassley withdrew his hold after Mr. Engel admitted, in written responses to questions from Grassley entered into the Congressional Record, that the OLC opinion was defective.

“Mr. Engel’s responses, both in writing and in person, indicate that he agrees each Member, whether or not a chairman of a committee, is a constitutional officer entitled to the respect and best efforts of the executive branch to respond to his or her requests for information to the extent permitted by law,” Sen. Grassley said.

“I am satisfied that Mr. Engel understands the obligation of all Members of Congress to seek executive branch information to carry out their constitutional responsibilities and the obligation of the executive branch to respect that function and seek comity between the branches. Therefore, I agree a vote should be scheduled on his nomination, and I wish him the very best in his new role,” he said.

See Removal of Nomination Objection, Congressional Record, July 19, 2017, pp. S4077-4079.

USAF Upgrades Secrecy of Nuclear Weapons Inspections

The U.S. Air Force has upgraded the classification of information pertaining to nuclear weapons inspections performed by the Inspector General, reducing or eliminating public references to the outcome of such inspections.

Until recently, the IG weapons inspections could be described in unclassified reports. Now they will be classified at least at the Confidential level.

An Air Force nuclear surety inspection (NSI) “assesses a unit’s ability to accomplish its assigned nuclear weapons mission and produce reliable nuclear weapons in a safe and secure environment in compliance with applicable directives. Additionally, an NSI inspects a unit’s capability to safely and reliably receive, store, secure, assemble, transport, maintain, load, mate, lock/unlock, test, render safe and employ nuclear weapons.”

The inspections typically result in a “grade” indicating the level of compliance. Whether pass or fail, those grades, too, will now be classified.

The changes were made following the latest revision of Chairman of the Joint Chiefs Instruction (CJCSI) 3263.05C, Nuclear Weapons Technical Inspections, issued on March 10, 2017. Though unclassified, the Instruction is “Limited” in distribution and is not publicly available.

Even those nuclear weapons inspections that produce a finding of full compliance cannot be disclosed, and from now on they also cannot be acknowledged in military decorations or unit awards.

“These changes are control measures put in place to prevent revealing potential vulnerabilities to adversary forces,” wrote Staff Sgt. Alexx Pons of Air Force Public Affairs. See “Nuclear inspection grade restricted in evaluation, decoration and award comments,” June 14, 2017.

The results of nuclear weapons inspections have been published for decades, noted Hans Kristensen of the Federation of American Scientists, without any reported adverse effect on national security. So an alternate explanation for the new classification policy seems wanted. “The change sure looks handy for preventing the public from knowing embarrassing information about when Air Force units fail nuclear inspections,” he said.

Trump Objects to Legislated Limits on Secrecy

In the new Consolidated Appropriations Act of 2017 (section 8009), Congress mandated that no new, highly classified special access programs may be created without 30 day advance notice to the congressional defense committees.

But in signing the bill into law last Friday, President Trump said he would not be bound by that restriction.

“Although I expect to be able to provide the advance notice contemplated by section 8009 in most situations as a matter of comity, situations may arise in which I must act promptly while protecting certain extraordinarily sensitive national security information. In these situations, I will treat these sections in a manner consistent with my constitutional authorities, including as Commander in Chief,” he wrote in a May 5 signing statement.

More generally, Trump suggested that his power to classify national security information is altogether independent of Congress. “The President’s authority to classify and control access to information bearing on the national security flows from the Constitution and does not depend upon a legislative grant of authority,” he wrote.

This is a paraphrase of language in the 1988 US Supreme Court opinion in Department of the Navy v. Egan (The President’s “authority to classify and control access to information bearing on national security… flows primarily from this Constitutional investment of power in the President and exists quite apart from any explicit congressional grant.”)

But left unsaid in President Trump’s signing statement was that the Supreme Court has also held that Congress could modify existing classification procedures or create its own secrecy system.

Thus, in EPA v. Mink (1973), the Supreme Court stated: “Congress could certainly have provided that the Executive Branch adopt new [classification] procedures, or it could have established its own procedures — subject only to whatever limitations the Executive privilege may be held to impose upon such congressional ordering.”

And, as noted by Jennifer Elsea, Congress has in fact legislated a classification regime for nuclear weapons-related information in the Atomic Energy Act.

So the newly legislated notification requirements concerning special access programs appear to be well within the constitutional authority and power of Congress.

The Intelligence Authorization Act for FY 2017 was incorporated into the Consolidated Appropriations Act as “Division N” and enacted into law.

President Trump’s reservations about various provisions in the new appropriations act were presented in the first signing statement issued by the current Administration (h/t Charlie Savage).

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