Trump Administration

Posted on Dec.23, 2019 in Trump Administration by

White House Rebuffs Declassification, Disclosure Requirements

Congress adopted numerous new disclosure and reporting requirements in the government spending bill that was signed into law last week. But the Trump White House said that many of them encroach on executive authority and that they may not be implemented as written.

Several provisions of the FY2020 Consolidated Appropriations Act “purport to mandate or regulate the submission of certain executive branch information to the Congress or the public, including by mandating the declassification of certain information,” the White House said in a December 20 signing statement.

“My Administration will treat these provisions consistent with the President’s constitutional authority to control the disclosure of information that could impair foreign relations, national security, law enforcement, the deliberative processes of the executive branch, or the performance of the President’s constitutional duties,” the statement said.

Among the provisions that the White House specifically objected to was a requirement to declassify information regarding Saudi government assistance to Saudi nationals in the U.S. suspected of committing crimes (HR 1865, Sect. 902). That provision, introduced by Sen. Ron Wyden, had passed the Senate by voice vote and was incorporated in the final legislation (with an added exemption for intelligence sources and methods). Now it is unclear whether it will be acted upon at all.

The Trump White House expressed criticism not only of declassification and other public disclosure requirements. It also took exception to dozens of provisions that involve sharing information with Congress, even on a classified basis.

Thus, a provision in the FY2020 defense authorization act (S. 1790, section 1650) directs the President to allow congressional defense committees to review (but not retain) classified National Security Presidential Memorandums on DoD operations in cyberspace. After being read at a secure facility, the classified documents are to be collected and returned to the President, the legislation stated.

No, said the White House.

This and other provisions on sharing of information “purport to mandate or regulate the dissemination of information that may be protected by executive privilege, including by interfering with Presidential control of the process for making a determination that information is protected,” according to another December 20 signing statement.

“My Administration will treat these provisions consistent with the President’s constitutional authority to control information, the disclosure of which could impair national security, foreign relations, law enforcement, or the performance of the President’s constitutional duties.”

The obvious defect in the White House posture is that Congress has constitutional duties of its own. Many of these duties require congressional access to information that is in the possession of the executive branch. Congress must fund (or decline to fund) the national security operations of the government. It alone possesses the authority to declare war. It has a duty to perform oversight. Importantly, it also has tools at its disposal to compel disclosure of the information it needs.

While the latest White House signing statements convey a rhetorical sense of defiance, they do not by themselves defy or modify the law. But neither do they do anything to advance a resolution of the competing interests at stake.

The significance of signing statements was considered in a 2012 report by the Congressional Research Service. See Presidential Signing Statements: Constitutional and Institutional Implications, January 4, 2012.

Posted on Sep.03, 2019 in Science, technology, Trump Administration by

White House Issues a “National” Science & Tech Agenda

A new White House budget memo presents science and technology as a distinctly American-led enterprise in which U.S. dominance is to be maintained and reinforced. The document is silent on the possibility or the necessity of international scientific cooperation.

“The five R&D budgetary priorities in this memorandum ensure that America remains at the forefront of scientific progress, national and economic security, and personal wellbeing, while continuing to serve as the standard-bearer for today’s emerging technologies and Industries of the Future,” wrote Acting OMB Director Russell T. Vought and White House science advisor Dr. Kelvin K. Droegemeier in the August 30 memo.

The document, which is intended to inform executive branch budget planning for fiscal year 2021, contains no acknowledgment that many scientific challenges are global in scope, that foreign countries lead the U.S. in some areas of science and technology, or that the U.S. could actually benefit from international collaboration.

*    *    *

The White House memo begins by designating the entire post-World War II period until now as America’s “First Bold Era in S&T [Science & Technology].” It goes on to proclaim that the “Second Bold Era in S&T” has now begun under President Trump.

“The Trump Administration continues to prioritize the technologies that power Industries of the Future (IotF),” the memo declares.

Many of the proposed technology priorities are already in progress — including artificial intelligence, robotics, and gene therapy. Some are controversial or disputed — such as the purported need to invest in protection against electromagnetic pulse attacks.

Meanwhile, the memo takes pains to avoid even mentioning the term “climate change,” which is disfavored by this White House. Instead, it speaks of “Earth system predictability” and “knowing the extent to which components of the Earth system are practically predictable.”

Today’s Second Bold Era is “characterized by unprecedented knowledge, access to data and computing resources, ubiquitous and instant communication,” and so on. “Unfortunately, this Second Bold Era also features new and extraordinary threats which must be confronted thoughtfully and effectively.”

The White House guidance suggests vaguely that the Second Bold Era could require a recalibration of secrecy policy in science and technology. “[Success] will depend upon striking a balance between the openness of our research ecosystem and the protection of our ideas and research outcomes.”

This may or may not augur a change in the longstanding policy of openness in basic research that was formally adopted in President Reagan’s 1985 National Security Decision Directive 189. That directive stated that “It is the policy of this Administration that, to the maximum extent possible, the products of fundamental research remain unrestricted.”

*    *    *

The context for the concern about protecting U.S. ideas and research outcomes is an assessment that U.S. intellectual property is being aggressively targeted and illicitly acquired by China, among other countries.

“China has expansive efforts in place to acquire U.S. technology to include sensitive trade secrets and proprietary information,” according to a 2018 report from the National Counterintelligence and Security Center. “Chinese companies and individuals often acquire U.S. technology for commercial and scientific purposes.”

Perceived Chinese theft of U.S. intellectual property is one of the factors that led to imposition of U.S. tariffs on Chinese imports. See U.S.-China Relations, Congressional Research Service, August 29, 2019.

*    *    *

At an August 30 briefing on artificial intelligence in the Department of Defense, Air Force Lt. General Jack Shanahan discussed the need to protect military data in the context of AI.

But unlike the new White House memo, Gen. Shanahan recognized the need for international cooperation even (or especially) in national security matters:

“We’re very interested in actively engaging a number of international partners,” he said, “because if you envision a future of which the United States is employing A.I. in its military capabilities and other nations are not, what does that future look like? Does the commander trust one and not the other?”

By analogy, however, the same need for international collaboration arises in many other areas of science and technology which cannot be effectively addressed solely on a national basis, from mitigating climate change to combating disease. In such cases, everyone needs to be “at the forefront” together.

*    *    *

One way to bolster U.S. scientific and intellectual leadership that the White House memo does not contemplate is to encourage foreign students at American universities to remain in this country. Too often, they are discouraged from doing so, wrote Columbia University Lee C. Bollinger in the Washington Post.

“Many of these international scholars, especially in the fields of science, technology, engineering and mathematics, would, if permitted, prefer to remain in the United States and work for U.S.-based companies after graduation, where they could also contribute to the United States’ economic growth and prosperity. But under the present rules, when their academic studies are completed, we make it difficult for them to stay. They return to their countries with the extraordinary knowledge they acquired here, which can inform future commercial strategies deployed against U.S. competitors,” Bollinger wrote on August 30.

*    *    *

As for the Trump Administration’s pending FY2020 budget request for research and development, it does not convey much in the way of boldness (or Boldness).

“Under the President’s FY2020 budget request, most federal agencies would see their R&D funding decline. The primary exception is the Department of Defense,” according to the Congressional Research Service.

“The President’s FY2020 budget request would reduce funding for basic research by $1.5 billion (4.0%), applied research by $4.3 billion (10.5%), and facilities and equipment by $0.5 billion (12.8%), while increasing funding for development by $4.5 billion (8.3%).” See Federal Research and Development (R&D) Funding: FY2020, updated August 13, 2019.

Posted on May.22, 2019 in Trump Administration by

Election Interference Emergency Order Nets No Culprits

Last September, President Trump issued an executive order declaring a national emergency “to deal with the threat of foreign interference in United States elections.” Executive Order 13848 authorized sanctions against foreign individuals and entities determined to have engaged in election interference.

Six months later, no such individuals or entities have been identified.

“No entities or individuals have been designated pursuant to E.O. 13848,” according to the first semi-annual report on the national emergency issued by the Secretary of the Treasury. As a result, no sanctions were imposed and no civil penalties were assessed. (However, approximately $310,000 was spent to implement the executive order, “most of which represent wage and salary costs for federal personnel.”)

See Periodic Report on the National Emergency With Respect to the Threat of Foreign Interference in United States Elections, September 12, 2018 through March 5, 2019, Department of the Treasury, which was released this week under the Freedom of Information Act.

In a classified report earlier this year, the Departments of Justice and Homeland Security said they found no evidence that a foreign government or foreign agent had a material impact on the integrity or security of the 2018 midterm elections.

Posted on Jan.07, 2019 in Dept of Defense, Secrecy, Trump Administration by

Trump Says DoD IG Reports Should Be “Private”

The recurring dispute over the appropriate degree of secrecy in the Department of Defense arose in a new form last week when President Trump said that certain audits and investigations that are performed by the DoD Inspector General should no longer be made public.

“We’re fighting wars, and they’re doing reports and releasing it to the public? Now, the public means the enemy,” the President said at a January 2 cabinet meeting. “The enemy reads those reports; they study every line of it. Those reports should be private reports. Let him do a report, but they should be private reports and be locked up.”

It is not clear what the President had in mind. Did he have reason to think that US military operations had been damaged by publication of Inspector General reports? Was he now directing the Secretary of Defense to classify such reports, regardless of their specific contents? Was he suggesting the need for a new exemption from the Freedom of Information Act to prevent their disclosure?

Or was this simply an expression of presidential pique with no practical consequence? Thus far, there has been no sign of any change to DoD publication policy in response to the President’s remarks.

Meanwhile, Rep. Adam Smith, the incoming chairman of the House Armed Services Committee, reiterated his view to the contrary that the Pentagon needs to be more forthcoming with information, not less.

“As Chairman, I will work with my colleagues to promote transparency and Congressional oversight, enhance military readiness, combat inefficiency and waste at DOD, advance green technology in defense and address the threat climate change poses to our national security, fight for an inclusive military, and move towards a responsible approach to nuclear weapons,” he said on January 4. (And, he wrote earlier, “Constant misinformation from the president is a real problem in a democratic society.”)

There are indications that some Pentagon officials may be receptive to Chairman Smith’s concerns.

After reporters complained about the growing use of “For Official Use Only” markings to restrict access to information, Under Secretary of Defense (acquisition and sustainment) Ellen Lord responded that “I understand the need, the requirement” for transparency, “and I will put out guidance to make everything open to the public to the degree we can.” See “Pentagon’s Chief Weapons Buyer Promises Less Secrecy in Reports” by Anthony Capaccio, Bloomberg, January 4.

While secrecy in the Department of Defense has increased noticeably in the Trump Administration, the Pentagon remains an astonishingly prolific publisher of military information, issuing dozens or hundreds of directives, manuals, reports and other publications each day. Most are the product of routine bureaucratic churning, and are of little if any significance, but some have broader interest or appeal. Here are a few that caught our eye.

Techniques for Visual Information Operations, ATP 6-02.40, US Army, January 3, 2019

Military Diving Operations: Multi-Service Tactics, Techniques, and Procedures, ATP 3-34.84, January 2, 2019

DoD support to non-contiguous States and territories in response to disasters, threats, and emergencies, report to Congress, n.d. (Nov. 2018)

The U.S. Army in Multi-Domain Operations 2028, TRADOC Pamphlet 525-3-1, 6 December 2018

DoD Scientific and Technical Information Program (STIP), DoD Instruction 3200.12, August 22, 2013, Incorporating Change 3, Effective December 17, 2018

The latter document directs that “DoD will maximize the free flow of scientific and engineering information developed by or for DoD to the public.”

Posted on Nov.06, 2017 in CRS, Trump Administration by

Some “Acting” Officials Will Soon Lose Authority

Some government officials who are serving on an “acting” basis because a permanent replacement has not yet been named will lose their ability to function this month when their legal authority is nullified under the terms of the Vacancies Act.

In the Trump Administration there are hundreds of government agency positions requiring Senate confirmation that have gone unfilled. In many cases, their responsibilities have been assumed by “acting” officials.

But by law, that arrangement can only be temporary. The Federal Vacancies Reform Act of 1998 specifies that “acting” officers can fill positions requiring confirmation for no more than 210 days. If the position is vacant at the start of a new Administration, an extension of 90 days is allowed, for a total of 300 days.

The 300 day period from Inauguration Day last January 20 will end on November 16, 2017. After that, certain acting officials will no longer be able to carry out their duties.

“If the acting officer remains in office and attempts to perform a nondelegable function or duty — one that a statute or regulation expressly assigns to that office — that action will ‘have no force or effect’,” according to a new brief from the Congressional Research Service.

See Out of Office: Vacancies, Acting Officers, and Day 301, CRS Legal Sidebar, November 1, 2017. See also The Vacancies Act: A Legal Overview, October 30, 2017.

President Trump does not appear to be concerned about the matter. Asked about high level vacancies in the State Department last week, he told Laura Ingraham of Fox that most of the government positions awaiting confirmed nominees were superfluous. “I’m the only one that matters,” he said.

Posted on Aug.29, 2017 in CRS, Trump Administration by

Can the President Pardon Himself?

The Congressional Research Service has prepared a summary overview of the presidential pardon power, addressing various legal questions such as: “whether the President can issue ‘prospective’ pardons; whether the President can pardon himself; and the extent to which Congress can regulate or respond to the exercise of the President’s pardon authority.”

So can the President pardon himself?

“The Framers did not debate this question at the Convention, and it unclear whether they considered whether the pardon power could be applied in this manner. No President has attempted to pardon himself. . . Accordingly, this is an unsettled constitutional question, unlikely to be resolved unless a President acts to pardon himself for a criminal offense.”

See Presidential Pardons: Frequently Asked Questions (FAQs), CRS Legal Sidebar, August 28, 2017.

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

Allowances and Office Staff for Former Presidents, FY2016-FY2018 Appropriations, CRS Insight, August 28, 2017

Transport Agencies Withdraw Proposed Sleep Apnea Rules, CRS Insight, August 24, 2017

Kurds in Iraq Propose Controversial Referendum on Independence, CRS Insight, August 25, 2017

China’s Economic Rise: History, Trends, Challenges, and Implications for the United States, updated August 26, 2017

China-U.S. Trade Issues, updated August 26, 2017

Posted on Aug.01, 2017 in budget, CRS, Trump Administration by

Trump Budget Would Reduce Most Federal R&D

The Trump Administration budget request would cut federal spending on research and development in every major agency except for the Department of Defense and Veterans Affairs, the Congressional Research Service said yesterday in a new report.

“Nearly every federal agency would see its R&D funding decrease under the President’s FY2018 request compared to their FY2016 levels,” the CRS report said.

“The largest declines (as measured in dollars) would occur in the budgets of HHS (down $6.099 billion, 18.9%), DOE (down $1.809 billion, 11.9%), USDA (down $666 million, 25.1%), NSF (down $639 million, 10.6%), and the EPA (down $239 million, 46.3%).”

Federal R&D is generally understood to provide support for scientific, medical, military and other research of economic, social, security or other value that would not normally be undertaken by the private sector. Reducing R&D therefore means foregoing the benefits that might otherwise accrue from such investment.

CRS noted that the Trump budget request is “largely silent” on funding for existing multiagency R&D initiatives such as the National Nanotechnology Initiative, Networking and Information Technology Research and Development program, U.S. Global Change Research Program, Brain Research through Advancing Innovative Neurotechnologies (BRAIN) initiative, Precision Medicine Initiative, Cancer Moonshot, Materials Genome Initiative, National Robotics Initiative, and National Network for Manufacturing Innovation. The future of these programs, some of which have a statutory basis, is left uncertain in the Administration budget request.

However, the budget request is the first word, not the last word, in the budgeting process.

“Congress may opt to agree with none, part, or all of the request, and it may express different priorities through the appropriations process,” CRS said. “In particular, Congress will play a central role in determining the allocation of the federal R&D investment in a period of intense pressure on discretionary spending.”

See Federal Research and Development Funding: FY2018, July 31, 2017.

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

Bail: An Overview of Federal Criminal Law, updated July 31, 2017

The Federal Communications Commission: Current Structure and Its Role in the Changing Telecommunications Landscape, updated July 28, 2017

Ongoing Section 232 Steel and Aluminum Investigations, CRS Insight, July 28, 2017

In Brief: Highlights of FY2018 Defense Appropriations Actions, July 31, 2017

NAFTA and Motor Vehicle Trade, July 28, 2017

Rwanda’s August 4 Presidential Election, CRS Insight, July 31, 2017

Honduras: Background and U.S. Relations, updated July 28, 2017

U.S. Petroleum Trade with Venezuela: Financial and Economic Considerations Associated with Possible Sanctions, CRS Insight, July 27, 2017

Afghanistan: Post-Taliban Governance, Security, and U.S. Policy, updated July 24, 2017

Posted on May.26, 2017 in classification, Leaks, Trump Administration by

Legality of Presidential Disclosures, Continued

“There is no basis” for suggesting that President Trump’s disclosure of classified intelligence to Russian officials was illegal, wrote Morton Halperin this week.

To the contrary, “senior U.S. government officials in conversations with foreign officials decide on a daily basis to provide them with information that is properly classified and that will remain classified,” wrote Halperin, who is himself a former senior official.

“We should not let our desire to confront President Trump lead us to espouse positions that violate his rights and that would constrain future presidents in inappropriate ways.” See “Trump’s Disclosure Did Not Break the Law” by Morton H. Halperin, Just Security, May 23, 2017.

But constraints on presidential disclosure were on the minds of Rep. Stephanie Murphy (D-FL) and 17 House colleagues. They introduced legislation on May 24 “that would require the President to notify the intelligence committees when a U.S. official, including the President, intentionally or inadvertently discloses top-secret information to a nation that sponsors terrorism or, like Russia, is subject to U.S. sanctions.”

Yesterday, Rep. Dutch Ruppersberger (D-MD) introduced a bill “to ensure that a mitigation process and protocols are in place in the case of a disclosure of classified information by the President.”

Rep. Mike Thompson (D-CA) and five colleagues introduced a resolution “disapproving of the irresponsible actions and negligence of President Trump which may have caused grave harm to United States national security.”

For related background, see The Protection of Classified Information: The Legal Framework, Congressional Research Service, updated May 18, 2017, and Criminal Prohibitions on Leaks and Other Disclosures of Classified Defense Information, Congressional Research Service, updated March 7, 2017.

Posted on May.18, 2017 in classification, Leaks, Russia, Trump Administration by

Legality of the Trump Disclosures, Revisited

When President Trump disclosed classified intelligence information to Russian officials last week, did he commit a crime?

Considering that the President is the author of the national security classification system, and that he is empowered to determine who gets access to classified information, it seems obvious that the answer is No. His action might have been reckless, I opined previously, but it was not a crime.

Yet there is more to it than that.

The Congressional Research Service considered the question and concluded as follows in a report issued yesterday:

“It appears more likely than not that the President is presumed to have the authority to disclose classified information to foreign agents in keeping with his power and responsibility to advance U.S. national security interests.” See Presidential Authority to Permit Access to National Security Information, CRS Legal Sidebar, May 17, 2017.

This tentative, rather strained formulation by CRS legislative attorneys indicates that the question is not entirely settled, and that the answer is not necessarily obvious or categorical.

And the phrase “in keeping with his power and responsibility to advance U.S. national security interests” adds an important qualification. If the president were acting on some other agenda than the U.S. national interest, then the legitimacy of his disclosure could evaporate. If the president were on Putin’s payroll, as the House majority leader lamely joked last year, and had engaged in espionage, he would not be beyond the reach of the law.

Outlandish hypotheticals aside, it still seems fairly clear that the Trump disclosures last week are not a matter for the criminal justice system, though they may reverberate through public opinion and congressional deliberations in a consequential way.

But several legal experts this week insisted that it’s more complicated, and that it remains conceivable that Trump broke the law. See:

“Don’t Be So Quick to Call Those Disclosures ‘Legal'” by Elizabeth Goitein, Just Security, May 17, 2017

“Why Trump’s Disclosure to Russia (and Urging Comey to Drop the Flynn Investigation, and Various Other Actions) Could Be Unlawful” by Marty Lederman and David Pozen, Just Security, May 17, 2017

“Trump’s disclosures to the Russians might actually have been illegal” by Steve Vladeck, Washington Post, May 16, 2017

Update, 05/23/17: But see also Trump’s Disclosure Did Not Break the Law by Morton Halperin, Just Security, May 23, 2017.

Posted on May.16, 2017 in Intelligence, Russia, Trump Administration by

An Authorized Disclosure of Classified Information

Updated below

President Trump’s disclosure of classified intelligence information to Russian officials, reported by the Washington Post, may have been reckless, damaging and irresponsible. But it was not a crime.

Disclosures of classified information are not categorically prohibited by law. Even intelligence sources and methods are only required to be protected under the National Security Act from “unauthorized disclosure.” This leaves open the possibility that disclosures of such classified information can actually be authorized. And we know that they are, from time to time.

One statute in particular — 18 USC 798 — does come close to matching the circumstances of the Trump disclosure to Russia, with a crucial exception.

That statute makes it a felony to disclose to an unauthorized person any classified information “concerning the communication intelligence activities of the United States or any foreign government; or […] obtained by the processes of communication intelligence from the communications of any foreign government.”

But it further explains that an “unauthorized person” is one who has not been “authorized to receive information… by the President.”

This morning, President Trump tweeted that “As President I wanted to share with Russia (at an openly scheduled W.H. meeting) which I have the absolute right to do, facts pertaining to terrorism and airline flight safety. Humanitarian reasons, plus I want Russia to greatly step up their fight against ISIS & terrorism.”

(Was the gratuitous parenthetical phrase “at an openly scheduled W.H. meeting” intended to rule out a clandestine transfer of classified information?)

All of that is to say that this episode, though it may have far-reaching ramifications for national security, is probably not a matter for law enforcement. (Based on the reporting by the Washington Post, the President’s actions did violate the terms of an intelligence sharing agreement with a foreign government that supplied the information. But that agreement would not be enforced by the criminal justice system.)

Instead, this is something to be weighed by Congress, which has the responsibility to determine whether Donald J. Trump is fit to remain in office.

Update, 05/17/17: For contrasting views arguing that Trump’s disclosure of classified intelligence to the Russians may actually have been illegal, see Marty Lederman and David Pozen, Liza Goitein, and Stephen Vladeck.

Update, 05/23/17: See also Trump’s Disclosure Did Not Break the Law by Morton Halperin, Just Security, May 23.