White House Directive Spawns Confusion

Updated below

Four months after President Trump issued his National Security Presidential Memorandum 5 on US policy towards Cuba and ordered it to be published in the Federal Register, that has still not been accomplished.

The Memorandum, posted on the White House web site on June 16, states that “The Secretary of State is hereby authorized and directed to publish this memorandum in the Federal Register.”

That was never done. Why not?

The State Department says it did not receive the Cuba directive in the proper form.

“The Federal Register requires the signed original be submitted for publication,” a State Department spokesman said last week. “The Department of State does not yet have the original document. We refer you to the White House for further information.”

For its part, the White House said the State Department spokesman was misinformed, that a certified copy had been promptly delivered to the executive secretariat within the Office of the Secretary of State, and that the document was ripe for publication in the Federal Register.

The fact remains that four months after its issuance NSPM 5 has yet to appear in the Federal Register as ordered by the President.

That kind of delay in publication is unusual. The previous National Security Presidential Memorandum, NSPM 4, was issued on April 4, 2017, and it was published in the Federal Register two days later on April 6.

What’s even more peculiar is that the whole notion of publishing the directives in the Federal Register seems to be based on a misunderstanding.

Prior to the Trump Administration, national security directives were never published in the Federal Register. But because the Trump directives were styled as “National Security Presidential Memoranda” it appears that they were drafted by White House officials using a template for ordinary (non-national security) “presidential memoranda,” which are routinely published in the Federal Register every few days.

Perhaps belatedly recognizing that fact, the latest NSPM 7 on “Integration, Sharing, and Use of National Security Threat Actor Information to Protect Americans” that was issued on October 4 and posted on the White House website is the first unclassified Trump NSPM that does not mandate publication in the Federal Register. (A classified annex to NSPM 7 listing attributes of “national security threat actors” was not released.) [Correction 10/16/17: Though initially withheld, the annex to NSPM 7 is unclassified and has been appended to the document posted on the White House website.]

Meanwhile, the sequential gap between NSPM 5 and NSPM 7 points to the existence of an NSPM 6. It is a classified document that has not been disclosed.

The Washington Post reported on September 30 that “Trump signed [a] presidential directive ordering actions to pressure North Korea.” But as far as could be determined, that reported directive was not NSPM 6 and apparently was not a “National Security Presidential Memorandum” at all, raising the possibility that the Trump White House is using some other yet-unidentified instrument of presidential authority to implement national security policy.

Update 10/20/17: NSPM 5 was published in the Federal Register on October 20, 2017.

State Dept Slow to Follow White House Order

When President Trump issued a National Security Presidential Memorandum (NSPM) on US policy towards Cuba on June 16, he included a provision ordering that it be published in the Federal Register: “The Secretary of State is hereby authorized and directed to publish this memorandum in the Federal Register.”

Now, more than two months later, the document has still not appeared in the Federal Register. (Previous memoranda in this series were all published in the Federal Register less than a week after they were signed by the President.)

Since the text of the Cuba NSPM has already been posted on the White House website (though without its identifying number NSPM-5), it is not a secret. And in the larger scheme of things, failing to publish it in the Federal Register is no great dereliction of duty.

But it indicates a glitch in the machinery of government in this Administration. When the President directs a subordinate to carry out an action, no matter how trivial, it is supposed to be carried out. That did not happen here.

For some reason, the gears in this Administration are not turning normally and predictably. Even easy things are not consistently getting done.

Why not?

In response to our inquiry, the State Department offered not an explanation for the delay but only an affirmation that the Department still plans to publish the Presidential memo in the Federal Register. Sometime.

Still No Classified Trump Presidential Directives

After nearly six months in office, President Trump has not yet issued a classified presidential directive on national security.

On June 16, Trump issued an unclassified National Security Presidential Memorandum (NSPM) on US policy towards Cuba, reversing or limiting some of the steps towards normalization of relations with that country that were undertaken by the Obama Administration.

The version of the Memorandum that was published on the White House website was unnumbered, but a White House official said last week that it is formally designated as NSPM-5.

Since the first four Trump NSPMs are also unclassified public documents, this means that at least as of June 16 there were still no classified or unreleased presidential directives on national security.

That is unexpected, and it is a departure from past practice in previous Administrations.

The explanation for the lack of classified NSPMs is unclear.

It is possible that President Trump is using some other instrument for issuing policy directives on classified national security matters (though that would be at odds with the definition and purpose of NSPMs). Alternatively, he may have delegated certain aspects of national security decision making elsewhere, as with the authorization for the Secretary of Defense to determine troop levels in Afghanistan.

Or it could be that there just are no other Trump national security directives because there is no other Trump national security policy to speak of. The Administration may still be so understaffed that it is incapable of launching significant new policy initiatives.

The June 16 NSPM-5 directed the Secretary of State to publish it in the Federal Register. But three weeks later, even that simple task has still not been carried out.

Trump Broadcasts His National Security Directives

National security directives are among the most important tools the President has for managing his administration and for conducting U.S. policy on national defense, foreign relations, intelligence, nuclear weapons and other matters of consequence.

At the end of last week, President Trump publicly issued his first three national security directives, designated National Security Presidential Memoranda (NSPMs).

NSPM-1 is entitled “Rebuilding the U.S. Armed Forces.” It requires a “readiness review”, and calls for a new Nuclear Posture Review and a Ballistic Missile Defense Review. In a nod towards legal and fiscal reality, it says “This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.”

NSPM-2 is devoted to the “Organization of the National Security Council and the Homeland Security Council.” It modifies the NSC structure towards something resembling a compromise between or a hybrid of the Obama and Bush NSC structures, and borrows language from the Bush directive. Notably, however, it elevates “the Chief Strategist,” i.e. Stephen K. Bannon of Breitbart News, to membership in the NSC Principals Committee [as an invited attendee, not a statutory member]. This is a striking departure from past practice that injects an extreme political perspective into the national security policymaking process. At the same time, the Trump directive diminishes the NSC role of the Chairman of the Joint Chiefs of Staff and the Director of National Intelligence.

NSPM-3 calls for a “Plan to Defeat the Islamic State of Iraq and Syria.”

The directives include a certain amount of sloganeering and chest thumping that is familiar in electoral campaign documents, but somewhat unusual in presidential directives. So, President Trump writes, in order to achieve “peace through strength,” US Armed Forces must be “rebuilt.” And “there can be no accommodation or negotiation” with the Islamic State.

But what is even more unusual is that the Trump White House released all of these directives and ordered publication of each of them in the Federal Register.  It is, one might say, an act of unprecedented transparency.

It is technically true that “any presidential determination or directive can be published in the Federal Register, regardless of how it is styled,” as a 2000 opinion from the Justice of Department Office of Legal Counsel stated.

But for the past several decades, national security directives “were not required to be published in the Federal Register, were usually security classified at the highest level of protection, and were available to the public [only] after a great many years had elapsed, usually at the official library of the President who had approved them,” the Congressional Research Service said in a 2008 report.

Likewise, the Government Accountability Office said in 1992 that national security directives “are… not required to be published in the Federal Register or any other public document.”

In fact, no national security presidential directive seems to have ever been published in the Federal Register. Even unclassified directives have only inconsistently been released or published on the White House website. The Bush Administration’s first National Security Presidential Directive became public through a leaked version sent anonymously through the U.S. mail and was never published by the White House. In the Obama Administration, former NSC records access manager John Ficklin tried to get authorization to publish a list and compilation of unclassified national security directives, but was unsuccessful.

So why, by contrast, are the first three Trump national security directives public documents that will, furthermore, be incorporated in the Federal Register?

One possibility is that this is the result of a drafting error.

An earlier version of NSPM-1 obtained by the Washington Post was captioned as a “presidential memorandum,” which is a familiar type of issuance that is often published in the Federal Register, and not as a “national security presidential memorandum”. In other words, whoever drafted the new Trump directive may have been using a template for an ordinary “presidential memorandum” rather than for a national security directive. (Further blurring longstanding distinctions, the new Trump directives NSPM-2 and NSPM-3 — but not NSPM-1 — are also included in the “presidential memoranda” section of the White House website. And each of them is confusingly labeled on the index page as a “presidential memorandum,” not an NSPM.)

Another possible explanation for the serial publication of these frequently unpublished documents is that public dissemination of the new Trump national security directives is a kind of performance. It may be that President Trump does not only want to wield the power of his office, but also to be seen doing it.

On the Use of Presidential Policy Directives

On October 14, President Obama signed Presidential Policy Directive 43 on the normalization of relations between the United States and Cuba.

Aside from the substance of the directive on the future of US-Cuba relations, PPD-43 has several incidental features of interest.

First, it is a public document.

“The policy directive was notable because it was public instead of classified,” the New York Times said in an October 15 story.

That’s not exactly wrong, but it misses the larger point that even unclassified presidential directives are often withheld from public release. The White House web site has sections devoted to executive orders and presidential memoranda, but not to presidential directives. (Some unclassified directives are linked from the presidential memoranda section, while others are not available on the White House site at all.)

Second, it is striking that near the end of his second term, President Obama has issued only 43 presidential directives. By comparison, President George W. Bush issued 66 National Security Presidential Directives and 25 Homeland Security Presidential Directives, President Clinton issued 75 Presidential Decision Directives and President Reagan issued 325 National Security Decision Directives.

What, if anything, these differences mean requires further investigation. They could reflect differences in governing style, in organization of the policymaking process, or in the use of directives as an instrument of executive authority.

It is possible that some presidentially-initiated actions are being directed and executed using means other than formal directives.

For example, on September 21, 2016 President Obama ordered agencies to take certain actions concerning Climate Change and National Security. But instead of being issued as a Presidential Policy Directive, his Climate Change guidance was framed as a Presidential Memorandum.

Why?

The answer is unclear. An administration official said that Presidential Memoranda “can be used to direct agencies on the manner in which they do something they are otherwise (by law, executive order or presidential directive) authorized to do.” So maybe — the official couldn’t say for certain — the Climate Change memorandum directed the manner of execution but did not authorize any new activity. Had it done so, that would presumably have required a presidential “directive.”

The release of Presidential Policy Directive 43, following the release of PPD 41 last July, also indicates that there must be a PPD 42, the contents of which are currently unknown.

And on October 13, President Obama issued Executive Order 13744 on Coordinating Efforts to Prepare the Nation for Space Weather Events. The Order refers to a previously unidentified  Presidential Policy Directive 40 on National Continuity Policy that was signed on July 15, 2016. That directive has not been released.

The reference to PPD-40 was noted in “Obama expands his executive power beyond Earth” by Gregory Korte, USA Today, October 13.

The problem of secret law, which includes those presidential directives that define national policy and allocate government resources without public knowledge, was examined in a report entitled ”The New Era of Secret Law” by Elizabeth Goitein of the Brennan Center for Justice.

A Burst of New Presidential Directives

On July 26, President Obama issued Presidential Policy Directive (PPD) 41 on United States Cyber Incident Coordination.

Aside from the intrinsic interest of this document, it signifies an unexplained burst in the production of Presidential Policy Directives since the public release of PPD 30 in June 2015. Instead of the previous average of around 5 presidential directives issued per year, President Obama produced about ten PPDs in the past 12 months.

With one exception, even the subject matter of PPDs 31 through 40 is publicly unknown.

The exception is PPD 35 on United States Nuclear Weapons Command and Control, Safety, and Security, which was issued on December 8, 2015. PPD 35 was publicly referenced by the Department of Defense in the April 2016 DoD Instruction 5210.42 on DoD Nuclear Weapons Personnel Reliability Assurance.

PPD 35 presumably modifies and supersedes President GW Bush’s 2003 National Security Presidential Directive (NSPD) 28, which was identically entitled United States Nuclear Weapons Command and Control, Safety, and Security.

But since neither the text of NSPD 28 nor that of PPD 35 have been made public, the substance of any changes that were made to U.S. nuclear weapons policy by the later directive is not known.

PDD 62: Counterterrorism Policy Prior to 9/11

According to a newly declassified White House policy directive, counterterrorism policy has yielded “an increased rate of renditions, apprehensions, and convictions of terrorists,” as well as “a significant expansion of counterterrorism legislative authorities” and “a large increase in counterterrorism funding.”

But that White House directive — Presidential Policy Directive 62, Protection Against Unconventional Threats to the Homeland and Americans Overseas — was issued by President Bill Clinton, and dates from May 22, 1998.

Even the title of the directive, with its early use of the oddly dissonant term “homeland” to refer to the United States, suggests a greater continuity of government policy before and after 9/11 than may be generally recognized.

According to an unclassified White House fact sheet published at the time, “This Directive creates a new and more systematic approach to fighting the terrorist threat of the next century.  It reinforces the mission of the many U.S. agencies charged with roles in defeating terrorism; it also codifies and clarifies their activities in the wide range of U.S. counter-terrorism programs, from apprehension and prosecution of terrorists to increasing transportation security, enhancing response capabilities and protecting the computer-based systems that lie at the heart of America’s economy.”

The text of the Directive remained classified until March of this year, when it was declassified by the Interagency Security Classification Appeals Panel (thanks to an unidentified requester). It was made available through the Clinton presidential library.