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.