The National Reconnaissance Office (NRO) has modified its classification policies in favor of heightened secrecy, withholding budget records that were previously considered releasable and redesignating certain unclassified budget information as classified.

NRO is the U.S. intelligence agency that builds and operates the nation’s intelligence satellites.

Since 2006, and for most of the past decade, the NRO has released unclassified portions of its budget justification documents in response to requests under the Freedom of Information Act.

But in a January 23, 2017 letter, the NRO said it would no longer release that unclassified budget information, which it now deems classified.

“The NRO has determined that a series of unclassified items in the [FY 2016 budget justification] document in the aggregate reveals associations or relationships not otherwise revealed in the unclassified items individually; thus, in the aggregate, this information meets the standard for classification under E.O. 13526 Section 1.7(e),” wrote Patricia B. Cameresi, NRO FOIA Public Liaison, in her FOIA denial letter.

As a purely technical matter, the latter claim is probably a misreading of the Executive Order, which states in Section 1.7(e):

“Compilations of items of information that are individually unclassified may be classified if the compiled information reveals an additional association or relationship that:  (1) meets the standards for classification under this order; and (2) is not otherwise revealed in the individual items of information.”

Properly understood, the fact that various unclassified items reveal additional information in the aggregate does not mean that those items meet the standard for classification. That requires a separate determination which, in any case, is discretionary. Classifying compilations of unclassified budget information is a threshold which was never crossed in the past and which has not been explicitly justified by NRO here.

The NRO also invoked a statutory exemption in 10 USC 424, which says that NRO (along with DIA and NGA) cannot be compelled to disclose “any function” at all.

The upshot is that the NRO is abandoning the budget disclosure practices of the past decade, and is positioning itself to withhold anything and everything that it prefers not to release.

An administrative appeal of the NRO FOIA denial was filed yesterday.

Nearly half of all federal research and development dollars go to the Department of Defense, a new report from the Congressional Research Service observes. The Pentagon research budget is more than twice that of the next largest recipient, the Department of Health and Human Services.

The structure of the DoD research budget, which has “its own unique taxonomy,” is described in the new CRS report. See Department of Defense Research, Development, Test, and Evaluation (RDT&E): Appropriations Structure, December 13, 2016.

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

Military Construction: Process and Outcomes, December 14, 2016

Women in Combat: Issues for Congress, updated December 13, 2016

Agency Final Rules Submitted on or After June 13, 2016, May Be Subject to Disapproval by the 115th Congress, CRS Insight, updated December 15, 2016

Renewable Energy and Energy Efficiency Incentives: A Summary of Federal Programs, updated December 14, 2016

Renewable Identification Numbers (RINs) and Renewable Fuel Standard (RFS) Compliance, CRS Insight, December 14, 2016

The Renewable Fuel Standard (RFS): In Brief, updated December 14, 2016

NASA: FY2017 Budget and Appropriations, updated December 13, 2016

Noncitizen Eligibility for Federal Public Assistance: Policy Overview, updated December 12, 2016

The First Day of a New Congress: A Guide to Proceedings on the House Floor, updated December 13, 2016

The First Day of a New Congress: A Guide to Proceedings on the Senate Floor, updated December 13, 2016

Department of Education’s Withdrawal of Its Recognition of ACICS as an Accrediting Agency, CRS Insight, December 14, 2016

Cyprus: Reunification Proving Elusive, updated December 15, 2016

Latin America: Terrorism Issues, updated December 15, 2016

U.S. International Broadcasting: Background and Issues for Reform, updated December 15, 2016

The amount of money appropriated for U.S. intelligence increased in 2016 by about 5 percent to a total of $70.7 billion, up from $66.8 billion the year before.

The total includes FY 2016 appropriations for both the National Intelligence Program (NIP) and the Military Intelligence Program (MIP), which were officially disclosed on October 28, as they have been each year since 2007.

Opponents of intelligence budget disclosure had argued for decades that release of the total budget figures would lead inexorably to further uncontrolled disclosures.

In 1976, former Director of Central Intelligence James Schlesinger told the Church Committee that “One of the problems here is the camel’s nose under the edge of the tent, and I think that that is the fundamental problem in the area. There are very few people who can articulately argue that the publication of those [budget] figures in and of themselves, if it stopped there, would be harmful. The argument is that then the pressure would build up to do something else, that once you have published for example the… budget, that the pressures would build up to reveal the kinds of systems that are being bought for that money, and it is regarded as the first step down a slippery slope for those who worry about those kinds of things.”

But that concern about a “slippery slope” appears to have been refuted in practice, and — aside from unauthorized disclosures — additional budget secrets have been effectively preserved.

For the coming decade, the Department of Defense Military Intelligence Program (MIP) will focus its new investments “on space protection, enhancing capabilities that provide intelligence in Anti-Access / Area Denial environments, improving intelligence support to Cyber operations, and improving Security.”

So says the FY 2016 Congressional Budget Justification Book for the MIP, which was released this week in heavily redacted form under the Freedom of Information Act.

Though the majority of the document has been withheld, the released portions nevertheless contain fragmentary observations of interest.

For example, “budget uncertainty impeded efforts to develop and maintain language professionals at the highest levels of proficiency to meet the challenges posed by our adversaries.”

“DoD fell two points short of meeting its FY 2014 target to fill 52% of Defense Intelligence Enterprise government authorized language-required positions with individuals possessing the required language proficiency, with a total fill rate of 49.4%.”

Earlier this month, the National Geospatial-Intelligence Agency also released minimal unclassified portions of its FY2015 Congressional Budget Justification Book.

Intelligence community budgets appear set to continue on the modest downward slope of the last several years.

The Office of the Director of National Intelligence said yesterday that it was requesting $53.5 billion for the National Intelligence Program (NIP) in FY 2017, a slight reduction from the $53.9 billion that was requested for the NIP in FY 2016. (The amount actually appropriated has not yet been disclosed.)

“Recognizing the challenges of this fiscal environment, the IC continues to review its operational, investment, and infrastructure programs to identify areas for savings. The Budget reflects the results of a deliberative process to ensure that the IC focuses on those programs that have the most impact and highest priority,” ODNI said in a fact sheet on the FY 2017 request.

Meanwhile, the Department of Defense said that it was requesting $16.8 billion for the Military Intelligence Program (MIP) in FY 2017, down from the $17.9 billion requested for the current fiscal year.

Public disclosure of the NIP budget request was required by Congress in the FY 2010 intelligence authorization act. But there is no corresponding requirement for DoD to publicly report the amount of its annual budget request for the MIP.

The practice of voluntarily declassifying and disclosing the MIP budget request was started by James R. Clapper when he was Under Secretary of Defense (Intelligence). Doing so “made sense,” he said recently, particularly since the NIP budget figure had to be released anyway.

Some Members of Congress expressed disappointment that the Obama Administration did not also voluntarily disclose the budget requests of individual intelligence agencies.

“There is no transparency there — they’re complying with the thinnest of laws about the [aggregate] number,” said Rep. Peter Welch (D-VT). “Members of Congress and the American public really are learning nothing.” See “Obama Keeps Public in Dark About ‘Black Budget’ Requests” by Steven Nelson, U.S. News, February 9.

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The U.S. Constitution in Article I (Section 9) requires a public “Statement and Account” of the government’s receipt and expenditure of all money.

Past attempts to invoke this requirement to challenge intelligence budget secrecy have foundered on a 1974 US Supreme Court ruling in U.S. v. Richardson which said that a taxpayer lacked “standing” to make the argument in court.

But in a recent law review article, Chapman University professor Lawrence Rosenthal argued that this is not, or should not be, the end of the story, and that the Statement and Account clause may still have potency against secret intelligence expenditures.

“In terms of its text, original meaning, and its place in constitutional ethos and structure, the [Statement and Account] clause is comprehensible only if it is understood as a mechanism that enables the people to effectively hold the government accountable for its use of public funds. Disclosing an aggregate figure without more makes the clause a bit of foolscap…. If the clause requires only a meaningless and ineffectual disclosure, however, it becomes impossible to explain what it is doing in the Constitution.”

“Perhaps the level of disclosure required if we take the clause seriously would put the United States at a disadvantage when compared to other nations that fund their intelligence communities in secret. Or perhaps the resulting accountability would make our intelligence community stronger; we will never know unless we adopt a more transparent regime. Ultimately, however, the constitutional question about disclosure of intelligence spending does not turn on considerations of policy but on the Statement and Account Clause itself. If we take the clause seriously, the current regime cannot stand.”

See “The Statement and Account Clause as a National Security Freedom of Information Act” by Lawrence Rosenthal, Loyola University Chicago Law Journal, Volume 47, No. 1, Fall 2015.

U.S. intelligence spending remains at the frontier of national security classification and declassification policy, as some new scraps of intelligence budget information are divulged, most other information is withheld, and a simmering demand for greater disclosure persists in Congress and elsewhere.

Last month the National Geospatial-Intelligence Agency (NGA) released heavily redacted versions of its annual budget justification books for Fiscal Year 2012 and Fiscal Year 2013.

The declassified portions of the NGA budget documents reflect an emphasis on improved sharing of geospatial intelligence (GEOINT) products and an ongoing reliance on commercial satellite imagery.

“The FY 2013 budget request reflects a continuation of NGA’s Vision to provide on-line, on-demand access to GEOINT knowledge and to create new value by broadening and deepening analytic expertise.”

The documents allude briefly to development of “next-generation sensor/system collection capabilities” as well as a “next-generation exploitation capability [that] will enable analysts to [deleted].”

The documents were processed for declassification in response to a request under the Freedom of Information Act.

(The control markings on the original budget documents included “RSEN,” which is an abbreviation for “Risk Sensitive.” This term “is used to protect especially sensitive imaging capabilities and exploitation techniques,” according to ODNI classification guidance.)

Also last month, the Office of the Director of National Intelligence disclosed the aggregate amount of national intelligence spending for Fiscal Year 2005: it was $39.8 billion. With this retrospective release, a full decade’s worth of official figures on U.S. intelligence spending from 2005 through 2014 have now been published.

That is not good enough, say some members of Congress, who have reintroduced legislation in the House and the Senate to require disclosure of each individual intelligence agency budget total.

“The biggest threat to the successful implementation of a vital national program is the combination of unlimited money with non-existent oversight,” said Rep. Peter Welch (D-VT) last month. “Requiring the public disclosure of top-line intelligence spending [at each intelligence agency] is an essential first step in assuring that our taxpayers and our national security interests are well served.”

“Disclosing the top-line budgets of each of our intelligence agencies promotes basic accountability among the agencies charged with protecting Americans without compromising our national security interests,” said Rep. Cynthia Lummis (R-Wyo), who co-sponsored the legislation.

“Revealing the overall intelligence budget number has not jeopardized national security, as opponents of the proposal argued at the time, and has led to a more open and informed debate on national security spending,” said Sen. Ron Wyden (D-OR). “My House colleagues and I are pushing to declassify the topline budget numbers for each intelligence agency to provide Americans with more information about how their tax dollars are spent, in a responsible manner that protects national security.”

Similar legislation was introduced in the previous Congress but was not acted upon.

The U.S. has spent $1.6 trillion on post-9/11 military operations, including the wars in Iraq and Afghanistan and other counterterrorism activities, according to a new report from the Congressional Research Service.

“Based on funding enacted from the 9/11 attacks through FY2014, CRS estimates a total of $1.6 trillion has been provided to the Department of Defense, the State Department and the Department of Veterans Administration for war operations, diplomatic operations and foreign aid, and medical care for Iraq and Afghan war veterans over the past 13 years of war,” the report said. See “The Cost of Iraq, Afghanistan, and Other Global War on Terror Operations Since 9/11,” December 8, 2014.

The CRS report provides detailed tabulations of funding by agency, operation and fiscal year, along with appropriation source and functional breakdown. An appendix provides a monthly listing of U.S. troop levels in Afghanistan and Iraq, among other hard-to-find data assembled by CRS.

Ideally, the record compiled in the 100-page CRS report would serve as the basis for a comprehensive assessment of U.S. military spending since 9/11: To what extent was the expenditure of $1.6 trillion in this way justified? How much of it actually achieved its intended purpose? How much could have been better spent in other ways?

There is little sign of a systematic inquiry along these lines, but the CRS report identifies various “questions that Congress may wish to raise about future war costs,” as well as legislative options that could be considered.

The findings of the CRS report were reported on December 19 by Bloomberg News.

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Other noteworthy new reports from the Congressional Research Service that Congress has withheld from online public distribution include the following.

Russian Compliance with the Intermediate Range Nuclear Forces (INF) Treaty: Background and Issues for Congress, December 16, 2014

Economic Crisis in Russia, CRS Insights, December 17, 2014

Overview of Selected Federal Criminal Civil Rights Statutes, December 16, 2014

Ebola: Selected Legal Issues, December 16, 2014

Cybersecurity Issues and Challenges: In Brief, December 16, 2014

The 2013 Cybersecurity Executive Order: Overview and Considerations for Congress, December 15, 2014

Federal Research and Development Funding: FY2015, December 17, 2014

Border Security: Immigration Enforcement Between Ports of Entry, December 18, 2014

Radio Broadcasting Chips for Smartphones: A Status Report, December 15, 2014

Mexico: Background and U.S. Relations, December 16, 2014

The Islamic State in Egypt: Implications for U.S.-Egyptian Relations, CRS Insights, December 18, 2014

The National Intelligence Program received a total appropriation of $50.5 billion in fiscal year 2014, the Office of the Director of National Intelligence disclosed yesterday, as required by law. The Military Intelligence Program was funded at $17.4 billion in FY 2014, the Department of Defense said. Current and past intelligence budget disclosures can be found here.

Marshall Erwin, a former analyst at the Congressional Research Service and the CIA, said that in principle, the intelligence community should be able to “absorb recent cuts quite easily.” But “whether the IC will actually absorb cuts without degrading capabilities is a separate question. While it has the means to do so, thus far decisionmakers have not proven up to the task.” He presented his perspective on trends in intelligence spending in “Doing Way More with Much Less: Intelligence by the Numbers” on the new blog Overt Action.

Overt Action is part of an effort by Erwin and several colleagues “to create a venue for intelligence professionals to more effectively engage in public debate.”

The military budget is out of control. Not in the sense of the mantra of “waste, fraud, and abuse.” That is, in fact, a tiny slice of the enormous U.S. military spending. No, the budget is out of control in the sense that spending on the military is no longer subject to meaningful political review. The Pentagon has slipped its leash and Congress is not asking questions.

Congress is currently considering President Bush’s proposed budget, which included $515 billion for the military and separate requests for tens of billions more for intelligence and nuclear weapons and, on top of that, separate requests of over a hundred billion can be expected to cover the operating costs of the wars in Iraq and Afghanistan. This is more than we spent on the military during the height of the Cold War, even accounting for inflation. The president is constantly reminding us of how dangerous the world is and, of course, the threats to American security are all too real. But using the threats faced by the US today to justify Cold War-level budgets is possible only if we have near total amnesia about what the threat during the Cold War really was.

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The President has submitted a military budget of $440 billion dollars, with request for more than an additional hundred billion for the Iraq war expected later. It is finally time to say that the Pentagon budget has slipped its leash and is out of control. Not in the sense that the country is splashing money around without accounting for it but that the military budget process has escaped from meaningful political review and oversight. The Republicans know their biggest appeal to the American voters is as guarantors of their security, which they interpret as giving the Pentagon whatever it asks for, even as deficits climb. The Democrats are terrified of being seen as soft on defense so they don’t even dare ask questions. In this climate of fear we operate more on momentum than careful analysis and Congress can’t say “No” to the Pentagon on anything.

It is hard to make sense of the spending. We already spend more than the average peacetime levels of the Cold War and we are approaching Cold War peaks. Ah, but we are told the world is a very dangerous place today and we are fighting a hot war right now. That is true, but we need some perspective, and that has to come from Congress.

We are fighting a poorly defined, and probably weakly organized, set of groups that clearly wants to do us harm. But compare the military challenge of the Cold War. During the Reagan Administration, the Pentagon published annually a report called “Soviet Military Power.” It was meant to be a sobering read, and it was. The Russians had vast tank armies west of Berlin ready to roll to Lisbon and nuclear armed Soviet submarines constantly prowled up and down both coasts.

The threat to the country today is real but the military part of the threat from al Qaeda and the rest of the world is tiny compared to that from the old Soviet Union. If we are spending as much on the military today as we were during the Cold War, then at least one of three things must be true, either we are grossly overspending, or we are applying the wrong tool to the problem, or we are guilty of breathtaking inefficiencies.

What about the all-too-hot war in Iraq? The exact dollar cost of the Iraq war is hard to know, but the Iraq-specific “supplementals” the Administration has submitted to Congress since the war began have been between a quarter and a fifth the size of the rest of the military budget. Turn those numbers around and they imply that the country’s normal, peacetime, day-to-day military operations are financially equivalent to four or five simultaneous Iraq wars.

Several mistakes combine to create this unjustifiable budget.

First, military spending is at Cold War levels because we are still fighting the Cold War. The world has been turned on its head since the end of the Cold War, yet the relative allocation of resources among the three military Services has not changed more than a few percent. This might reflect an astonishing coincidence but it more likely reflects entrenched bureaucratic inertia. We hear the military is stretched thin but don’t be fooled, the Army is stretched thin, not the military. Many of the most expensive weapons in the pipeline were conceived during the Cold War and designed specifically to counter the old Soviet Union and are destined for the Navy and Air Force. There are a dozen examples but the most egregious is without doubt the Virginia-class submarine that, at two billion dollars each, is now being promoted in part as a way to intercept phone calls.

The U.S military budget is roughly the size of every other country’s spending combined and most of the other big spenders—Britain, France, and Japan among them—are our allies, not our enemies. So the Administration has created military requirements that it freely admits are unhinged from any real threats. The Pentagon calls this moving from “threat-based” to “capabilities-based” planning, on the theory that threats in today’s world change too quickly. But capabilities-based planning also means that, if Iran, North Korea, and China were taken over by Quakers tomorrow, our military budget would not go down by a nickel.

This is more than a question of wasting money.

The wrong spending can actually undermine our security. We are confused by our own euphemisms. We call the military budget the “defense” budget. Without question, the military is the cornerstone of our defense and we have learned that we must be ready for war to ensure peace but our defense requires more than military might.

Is our security increased more by buying an additional submarine or spending those billions of dollars on improved port security and building girls’ schools in Pakistan? Congress needs to make decisions about how much it wants to spend on defense and, of that amount, how much should go to the military. The Nation has to stop measuring its security by the size of the Pentagon’s budget.