Congress emerges from a sluggish, humid August recess into a raucous, sweltering September session. For now, it’s ahead of schedule, with the Senate passing a Continuing Resolution (CR) to fund the government past the September 30th deadline to December 11th (and safely beyond the midterms). Now the House must act. They may end up needing every minute of negotiation time, however, as major Trump administration priorities come to a head with congressional realities.

The science policy community has been active all summer, with a new NSF X-Labs program, an OSTP “Science: A New Golden Age” Report, and FAS Chief Science Officer, Dr. Jedidah Isler’s testimony on “American Global Competitiveness” in front of the House Energy and Commerce Committee (humble brag), to name just a few. As we head into the fall and the end of the 119th session, we face significant S&T issues of concern. Here is what we’re tracking:

1. Continually Resolving (& Gas Station Weed) 

Before breaking for August, the Senate passed a CR to kick the government funding can down the road to December 11th and provide for some choice anomaly funding and policy riders. Most importantly for us, Appropriations Chair Susan Collins (R-ME), who pressed for changes to the rule in a July 6 letter, said the agreement “prevents the Office of Management and Budget (OMB)’s proposed rule regarding federal financial assistance from taking effect” and “avoids any poison pills.” Senator Collins and her colleagues demonstrated tremendous leadership by heeding the call from the science community (and many more constituencies) and asserting congressional authority over the power of the purse.

If your life is impacted by federal grantmaking (it is), then you care about the OMB rule. FAS has done some explaining before, but the TL;DR is that it allows for significant, unprecedented influence from political appointees on how federal funding decisions get made. It would put political appointees in charge of federal grant review, allow termination of active grants at any time for shifting priorities, and restrict international research collaboration. FAS called for a delay and filed our comment, arguing among other things that “a termination authority operating under undefined standards is unaccountable.”

The issue is not settled, however, and we’re set for another September shutdown showdown as all eyes are on the House to pass the Senate’s CR with the OMB Rule delay attached. Senator John Kennedy (R-LA) claims President Trump is “comfortable” with the bill, which notably only delays the OMB rule implementation and does not eliminate it, but even if the administration decides not to pick that fight right now, there are other pain points that could become excruciating. The Senate CR included a delay of a ban on sales of certain intoxicating hemp-derived products, which has House Republicans uneasy about “gas station weed.” Add on to this midterm developments, a trade war, a real war, and more, and it becomes clear all the ways this can go wrong between now and then.

The House has options – it could bring the CR up under “suspension of the rules,” which bypasses a key initial voting hurdle without needing to acquiesce to smaller factions on select issues, but requires two-thirds of members voting to pass. We’ll see how creative they have to get.

What matters: The Senate-passed CR must be passed by the House before September ends, and it contains at least one high-profile provision that could cause trouble. It’s the last chance to address the OMB proposed rule before it goes into effect.

2. The OMB Rule & Impoundment

There is compelling evidence that the administration has been engaged actively in impoundment – the illegal withholding of congressional funds. Yes, this is still happening, and it’s still a massive deal. The OMB proposed rule is the administration’s attempt to formalize and endure tactics the administration has already been using to exert as much control as it can on federal funding at the individual award level.

Taken together, it is clear that the administration has been overreaching on federal funding decisions big and small, including and especially on programs specifically appropriated by Congress (which is law). The OMB proposed rule stands on a roof and shouts to the world what so many in the science community have been documenting for over a year: the Administration is testing the limits of the American taxpayer’s tolerance for unprecedented control of federal funding by the executive branch. The final theater of this fight will be in the courts.

As we track and respond to individual grantmaking decision changes and are still licking wounds from DOGE cuts (GAO isn’t buying the “savings” claims), in the big picture, agencies are still dealing with major budget shifts and withholdings. Recent reports suggest NSF will award roughly 46% fewer research grants than the 2021–24 average, and the lowest count since the early 1980s. Spending across nearly all eight of NSF’s main directorates is down 20% to 40% year over year despite Congress directing that no directorate be cut more than 5% against FY2024. Congress is flexing oversight muscles, and if Democrats expectedly take over at least one chamber next year, they’ll be doing much more than flexing.

In early August, Reps. Zoe Lofgren (D-CA) and Rep. Gabe Amo (D-RI) referred Energy Secretary Chris Wright to the Justice Department, alleging he testified falsely in June that $7.5 billion in clean energy grant terminations were not politically motivated. In July, DOJ itself acknowledged in a federal lawsuit that hundreds of terminations were “based solely on the political identity of the grant recipient’s state,” and 283 of the 284 were states that voted for Harris. According to Secretary Wright’s June 10 testimony: “…no decisions were made on politics.” Expect more, and more emboldened, oversight action like this these next two years.

What matters: We spent a year arguing about whether appropriated funds would be spent at all. Now we’re debating the basic structure of awarding individual federal grants. Next we need to know whether anyone will say out loud where the money is going and what Congress and American taxpayers want to do about it.

3. Science Leadership and the Midterms

Midterm primaries are coming to a close, and with it consequences for scientific leadership in Congress. Some notable science and health leaders were removed by their own party’s voters this cycle:

• Sen. Bill Cassidy (R-LA), chair of the Senate Health, Education, Labor, and Pensions Committee. Sen. Cassidy is a physician, noted science champion, and one of my personal favorite legislators. He lost his May primary to a MAGA/MAHA-aligned candidate and joins the list of Republican members who vocally opposed President Trump and lost.
• Rep. Haley Stevens (D-MI), ranking member of House Science’s Research and Technology subcommittee and a CHIPS and NSF reauthorization principal, lost Michigan’s Senate primary on August 4. Rep. Stevens was also a member of the Select Committee on the Strategic Competition Between the United States and the Chinese Communist Party, and a co-chair of important S&T caucuses such as the Future of Work Caucus.
• Rep. Raja Krishnamoorthi (D-IL), ranking member of the Select Committee on the CCP and member of the House Intelligence Committee, lost Illinois’s Senate primary in March.

Add the retirements, and you have up to ten science and technology leadership positions vacating before a November general election vote is counted:

• Sen. Mitch McConnell (R-KY) as Chairman on the Senate Appropriations Subcommittee on Defense,
• Sen. Joni Ernst (R-IA) as Chair on the Senate Armed Services Subcommittee on Emerging Threats,
• Rep. Don Bacon (R-NE) as Chair of the House Armed Services Subcommittee on Cyber, IT and Innovation,
• Sen. Gary Peters (D-MI) as Ranking Member of the Homeland Security and Government Affairs Committee,
• Rep. Jan Schakowsky (D-IL) as Ranking Member on the House Energy & Commerce Subcommittee on Commerce, Manufacturing, and Trade, and
• Sen. Steve Daines (R-MT) as Chairman of subcommittees on the Senate Energy and Natural Resources and Foreign Relations Committees.

One of the most consequential races for science leadership concerns the aforementioned Senator Collins in Maine. As Chair of the Appropriations Committee, she has maintained her status as one of the most high-profile members of Congress, and her centrist and bipartisan profile cast her as a key figure in every major congressional negotiation. On top of that, as recently demonstrated by her leadership in opposition to the OMB rule, she has been a stalwart champion and defender of science and technology priorities in Congress. Polls are classifying this race as a toss-up and essentially tied against Troy Jackson, who only became the nominee on July 25 after the widely reported Graham Platner controversies forced Platner’s dropout.

What matters: if you work a science portfolio, your customer list is about to change more than at any point since 1992. At least 83 members will not return, and 58 House retirements are the second-highest total in history.

4. Looking Ahead – Closing of the 119th Congress 

Congress is running out of track to deliver on key priorities that have been in negotiation throughout the 119th session. There are really only three legislative vehicles left (that could become one by December) – the CR funding package, the follow-up bill on December 11th for full annual funding (if the CR passes), and the yearly National Defense Authorization Act. Everything else – NASA reauthorization, National Quantum Initiative, Fix Our Forests Act, permitting, the farm bill, the Export-Import Bank reauthorization, and so much more – is cargo looking for a ride on one of these must-pass vehicles.

That’s a lot to squeeze in, but we know when Congress really wants to do something, they will. And even while it may feel fraught and intractable, somehow they find a way to get the necessary done in the end. Many of these items may well fall off and into the next Congress, but many too will pass into law (if I may provide such an uninspired expert take). External factors like wars, trade policies, and election security all loom large over all of it, however, and a month is a long time in Washington, D.C.

We’ll check back then! Ta-ta for now.

The Federation of American Scientists urges the U.S. government to release holds on Congressionally-appropriated funding for scientific research, education, and critical activities at the earliest possible time. This includes removing new or additional administrative processes that create additional layers of review and approval for federal funding opportunities, consistent with the Administration’s stated commitment to reduce administrative overhead in science and technology.

Funding disruptions and delays can create additional uncertainty for scientific programs, forcing individuals to change plans, cancel work, or seek other opportunities. According to a recent survey published by STAT:

• 23% of laboratories funded by NIH have laid off staff and rescinded offers made to graduate students as a result of funding changes, threatening the viability of the country’s talent pipeline (especially impacting women scientists and scientists from marginalized communities, and early career researchers);
• 68% reported their institutions increased administrative processes for spending and hiring as a result of federal policy changes, despite the government’s commitment to relieve administrative burden;
• 43% of researchers canceled planned research;
• 54% of researchers reduced the scope of their research, diminishing the impact and efficiency of their work;
• 56% redirected funding from other projects; and
• 53% of researchers advised their students to consider opportunities outside the United States. 

When the economic dynamics of any industry change, those with the talent and ability to change direction are often the first to do so.  We are already seeing increasing competition for international funding opportunities from American scientists. The prestigious European Research Council, whose grants are awarded if researchers agree to establish their team in Europe, has seen a fourfold increase in applications from Americans for the program’s Advanced Grants.  Last year, a survey by Nature suggested that 75% of American researchers were considering moving overseas.

Changes in the viability of proposals as a result of funding delays and lengthy approval processes also wastes the government’s time and money, forcing program officers to reevaluate proposals, often under new direction, when projects being considered for funding are no longer considered viable. 

What seem like esoteric considerations that impact only a small fraction of the population is, in fact, a much larger concern: historically, funding for science and technology has significant ripple effects that boost the American economy and offer real solutions that improve people’s daily lives.  If the National Institutes of Health expenditure is limited to that provided in the Fiscal Year 2026 President’s Budget Request, the projected economic impact would cost the U.S. economy approximately 46 billion dollars and over 200,000 jobs (not including NIH jobs already terminated).  Cuts to research-performing agencies can lead to losses of capacity, reduced ability to develop and deploy critical and emerging technologies, and diminished capability to maintain datasets that are essential for the functioning of the American economy, as noted in FAS’s ongoing “Dearly Departed Datasets” project.

“Recapturing the urgency that propelled us so far in the last century”, as the President’s letter to OSTP Director Michael Kratsios directs, requires approaching our changing competitive landscape, including federal support for science and technology, with the same level of urgency.

At FAS, we believe that collaboration produces the strongest policy solutions in pursuit of a government that delivers real results for the American people. This includes engaging directly with key stakeholders across the S&T ecosystem who are deeply connected to, impacted by or implicated in federal policymaking decisions around S&T funding and infrastructure. We also engage directly with members of the public who may have ideas or input about the impact of changes to the structure and level of the federal S&T ecosystem, but may not be in a position to directly impact it. 

If you are interested in this topic, want to offer your perspective, or have ideas for policy solutions to this challenge, we invite you to connect with our team by responding to our open call.

At the time of publication, the NDAA had passed both chambers of Congress but had not yet been signed by the president. The Act, S. 1071, was signed into law on December 18.

Congress’ new annual defense spending package, passed on December 17, authorizes $8 billion more than the Trump administration requested, for a total of $901 billion. The FY2026 National Defense Authorization Act (NDAA) paints a picture of a Congress that is working to both protect and accelerate nuclear modernization programs while simultaneously lacking trust in the Pentagon and the Department of Energy to execute them. Below is an overview of provisions of note in the new NDAA related to nuclear weapons.

Sentinel / Intercontinental Ballistic Missiles

Every year since fiscal year (FY) 2017, Congress has inserted language into the NDAA prohibiting the Air Force from deploying fewer than 400 ICBMs (an arbitrary requirement put in place by pro-ICBM members of Congress fearful of any reductions in the force). The FY26 NDAA does not break this streak; in fact, it entrenches the requirement deeper into US policy. Rather than repeating the minimum ICBM requirement as a simple provision as previous NDAAs have done, Section 1632 of the new legislation inserts the requirement into Title 10 of the United States Code (the US Code is the official codification by subject matter of the general and permanent federal laws of the United States. Title 10 of the Code is the subset of laws related to the Armed Forces). This change means that Congress will no longer have to agree to and insert the requirement into the NDAA year after year. Instead, the requirement becomes the permanent standard and will require an affirmative change in a future NDAA to undo. Beyond requiring the Air Force to deploy at least 400 ICBMs, the new defense spending act additionally amends Title 10 of US Code to prohibit the Air Force from maintaining fewer than the current number of 450 ICBM launch facilities (essentially meaning that the Air Force cannot decommission any of the 50 extra launch facilities in the US inventory). 

This change is indicative of a desire by Congress to bolster its protection of the ICBM program in response to increased scrutiny prompted by the ever-growing budgetary and programmatic failures of the Sentinel ICBM program. Interestingly, a provision in the Senate version of the defense authorization bill that would have established an initial operational capability (IOC) date for the Sentinel program of September 30, 2033, did not make it into the final text, suggesting a lack of confidence in the Air Force’s ability to achieve the milestone. With an original IOC of September 2030, the September 2033 date would have aligned with the Pentagon’s 2024 announcement that the Sentinel program was delayed by at least three years. The omission may thus indicate Congress’ anticipation of potential further delays to Sentinel’s schedule beyond the Air Force’s most recent estimate. 

Nuclear Armed Sea-Launched Cruise Missile (SLCM-N)

In addition to protecting the most politically vulnerable nuclear weapons programs, the FY26 NDAA also aims to speed up US nuclear modernization and development, in some cases even beyond the requests of the administration. Despite the fact that the Pentagon’s FY26 budget request requested no discretionary funding for the nuclear-armed, sea-launched cruise missile (SLCM-N), the NDAA authorized $210 million for the program — on top of the $2 billion to the Department of Defense and $400 million to the National Nuclear Security Administration (NNSA) included in the July 2025 reconciliation package to “accelerate the development, procurement, and integration” of the SLCM-N missile and warhead, respectively.  

Most notably, the new defense authorization act speeds up the SLCM-N’s deployment timeline by two years. Section 1633 of the act repeats the IOC date of September 30, 2034, established by the FY24 NDAA, but also requires DOD to deliver a certain number of SLCM-N — a number to be determined by the Nuclear Weapons Council — by September 30, 2032, to achieve “limited operational deployment” prior to IOC.  

Future nuclear development

In addition to speeding up the deployment timeline for SLCM-N, the FY26 NDAA initiates and accelerates the development of new nuclear weapons by creating a new NNSA program in addition to the stockpile stewardship and stockpile responsiveness programs: the rapid capabilities program. The new program — established by section 3113 of the NDAA via insertion into Title 50 of the US Code (War and National Defense) — is tasked with developing new and/or modified nuclear weapons on an accelerated, five-year timeline (compared to the traditional 10-15 year timeline for new weapons programs) to meet military and deterrence requirements.

Numerous provisions in the new NDAA reflect a lack of trust by Congress in DOD and DOE’s ability to execute and deliver nuclear modernization programs. The creation of stricter and more detailed reporting requirements and action items for making progress on various nuclear weapons related programs constitute an increased effort by Congress to micromanage nuclear modernization programs. 

One example of nuclear micromanagement in the act are Sections 150-151 regarding the B–21 bomber. Section 150 mandates the Air Force to submit to Congress:

• An annual report on the new B–21 nuclear bomber including:
  • An estimate for the program’s average procurement unit cost, acquisition unit cost, and life-cycle costs,
  • “A matrix that identifies, in six-month increments, plans for and progress in achieving key milestones and events, and specific performance metric goals and actuals for the development, production, and sustainment of the B–21 bomber aircraft program” (with detailed requirements for how the matrix should be subdivided and what information it must include),
  • A cost matrix (also in six-month increments and including specified subdivisions), 
• A semiannual update on the aforementioned matrices. 

In addition, the provision requires the US Comptroller General to “review the sufficiency” of the Air Force’s report and submit an assessment to Congress. The following section of the NDAA additionally requires the Air Force to submit to Congress — within 180 days of the act’s enactment — “a comprehensive roadmap detailing the planned force structure, basing, modernization, and transition strategy for the bomber aircraft fleet of the Air Force through fiscal year 2040” (once again, including detailed requirements for what information the roadmap must include). 

In a similar fashion, Sections 1641 and 1652 lay out strict reporting and planning requirements for sustaining the Minuteman III ICBM force and developing the Golden Dome ballistic missile defense program, respectively. 

Such efforts by Congress to increase its management of US nuclear weapons programs could be in response to repeated and ongoing delays, cost overruns, and setbacks, or could simply reflect Congress’ desire to seize more control over the nuclear enterprise to get what it wants (or, likely, a bit of both). To be clear, Congressional scrutiny into nuclear programs is welcome amidst a trend of over-budget and behind-schedule procurement of unnecessary weapon systems by the Pentagon. Congress can and should play an important role in ensuring that the Departments of Defense and Energy are not handed blank checks for nuclear modernization. 

That said, with this legislation, Congress authorized nearly $30 billion in spending for select nuclear weapons programs in FY26 alone. The tables below, developed by the Center for Arms Control and Non-Proliferation, show a breakdown of Congress’ authorizations for these programs:

Table 1: Funding amounts authorized by the FY26 NDAA for DOD Select Nuclear Weapons Programs (FY26 authorizations are reflected in the “Final” column). Table source: Center for Arms Control and Non-Proliferation.

Table 2: Funding amounts authorized by the FY26 NDAA for DOE Select Nuclear Weapons Programs (FY26 authorizations are reflected in the “Final” column). Table source: Center for Arms Control and Non-Proliferation.

This article was researched and written with generous contributions from the Carnegie Corporation of New York, the New-Land Foundation, Ploughshares, the Prospect Hill Foundation, and individual donors.

As Congress moves forward with the appropriations process, both the House and Senate have proposed various provisions related to artificial intelligence (AI) and machine learning (ML) across different spending bills. These proposals reflect the growing importance and adoption of AI/ML technologies across many areas of government.

Below we summarize AI/ML provisions for each appropriations bill in tables comparing the Senate and House versions. Tables include:

• Provision: Describes the AI/ML provision at a high level.
• Senate/House Summary: Summarizes the AI/ML language in the Senate or House bill for this provision. “N/A” indicates no related language.
• Status: Shows how far this provision has progressed in the legislative process.
• Page: Indicates where in the Senate or House bill report this provision appears, with page numbers. “S.” and “H.” indicate whether it is the Senate or House report, respectively.

Both chambers provide significant funding increases for AI research at science agencies like the National Science Foundation (NSF), National Institute of Standards and Technology (NIST), and the Department of Energy (DoE)’s Office of Science. For example, the Senate recommends $135 million for AI initiatives across DoE’s Office of Science, while the House includes $20 million for NSF to research AI explainability. NIST sees a $68 million funding increase in the Senate bill for its measurement labs and research, and a $15 million increase in the House.

The provisions overall seem focused on practical AI applications and boosting research, rather than ideological battles. The language in both chambers’ bills is framed in terms of maintaining US leadership and competitiveness, which tends to avoid partisan divisions. The House justifies more of its spending on AI in tones that are hawkish toward China. The Senate bills tend to have more congressionally directed spending items, or earmarks, related to AI.

Both bills demonstrate interest in AI applications like agricultural forecasting, autonomous vehicles, and utilizing AI to modernize government operations. But the Senate more explicitly directs agencies to adopt AI to improve such programs, and in some cases, such as NIST funding, the Senate is more fiscally generous. Overall, the Senate bill reports and bill summaries are more specific in the language and observations around AI, with 65 provisions related to AI or machine learning, compared to 44 in the House, across all appropriations bills. This potentially reflects a somewhat higher level of interest within the Senate Appropriations committee on the topic.

While both chambers agree on boosting AI research funding, the Senate takes a more top-down approach prescribing funding for AI initiatives while the House allows more agency discretion. Differences also emerge regarding perspectives on AI oversight and governance. Clearly, there will be a lot of coordination needed to align on AI funding priorities when (and if) these bills go to conference.

This tracker will be updated as the appropriations process continues.

Agriculture

• Senate: Passed Senate 11/1/23. Bill Report. 
• House: Passed House Appropriations 6/14/23, failed on House floor 9/28/23. Bill Report.

Commerce, Science & Justice

• Senate: Passed Senate Appropriations 7/13/23. Bill Report. 
• House: Passed House Appropriations 7/14/23. Bill Summary. Explanatory Materials.

Energy & Water Development

• Senate: Passed Senate Appropriations 7/20/23. Bill Summary. Bill Report. 
• House: Passed House 10/26/23. Bill Report.

Financial Services & Government

• Senate: Passed Senate Appropriations 7/13/23. Bill Report.
• House: Passed House Appropriations 7/13/23. Bill Report.

Homeland Security:

• Senate: Passed Senate Appropriations 7/27/23. Bill Report.
• House: Passed House 9/28/23. Bill Summary. Bill Report. 

Interior & Environment

• Senate: Passed Senate Appropriations 7/27/23. Bill Report.
• House: Passed full House 11/3/23. Bill Report.

Labor, HHS & Education

• Senate: Passed Senate Appropriations 7/27/23. Bill Report.
• House: Passed House Appropriations Subcommittee 7/14/2023. No Bill Report published.

Legislative Branch

• Senate: Passed Senate Appropriations 7/13/23. Bill Report.
• House: Passed House 11/1/23. Bill Report.

Military Construction & VA

• Senate: Passed Senate 11/1/23. Bill Report.
• House: Passed House 7/27/23. Bill Report. 

State & Foreign Operations

• Senate: Passed Senate Appropriations 7/20/23. Bill Report.
• House: Passed House 9/28/23. Bill Report. 

Transportation & HUD

• Senate: Passed Senate 11/1/23. Bill Report.
• House: Passed House Appropriations 7/18/23. Bill Report. 

Open source intelligence — which is derived from open, unclassified sources — should be recognized as a mature intelligence discipline that is no less important than other established forms of intelligence, the House of Representatives said last month in the FY 2022 defense authorization act (sec. 1612).

The House directed the Secretary of Defense and the Director of National Intelligence to develop and implement “a plan to elevate open-source intelligence to a foundational intelligence for strategic intelligence that is treated on par with information collected from classified means (for example, human intelligence, signals intelligence, and geospatial intelligence).”

Considering that those classified disciplines have large dedicated agencies of their own (CIA, NSA, NGA), it would seem to be a major undertaking to “elevate” open source intelligence to the same level and to treat it comparably.

Significantly, the House directive is driven not by some abstract preference for open sources but by “the intelligence priorities of the commanders of the combatant commands.” The thinking appears to be that open source intelligence — that can be shared widely or even (sometimes) publicly disclosed — offers practical advantages to military commanders that other, highly classified forms of intelligence typically lack.

A related sign of dissatisfaction with unchecked military secrecy can be found in another provision of the House authorization bill that would require the Space Force to “conduct a review of each classified program . . . to determine whether the level of classification of the program could be changed to a lower level or the program could be declassified.”

In recent years, open source intelligence has been managed by the elusive Open Source Enterprise (OSE) which is administratively housed at the Central Intelligence Agency. To the bewilderment and frustration of many users, the OSE decommissioned its own website in 2019 and made its products exceptionally difficult to access.

In response, last year’s intelligence authorization act (sect. 326) required a plan “for improving usability of the OSE” as well as other steps to enhance the utility of open source collection for intelligence. But so far, there is no externally visible sign of any change for the better.

Earlier this year, the CIA denied a Freedom of Information Act request for an unclassified OSE publication on North Korean ballistic missile tests. The CIA did not dispute that the document is unclassified, but it said the report was exempt from disclosure anyway. An appeal of the denial is pending.

The US military’s interest in open source intelligence is longstanding and arguably dates back to colonial times. The Army’s Military Intelligence Professional Bulletin devoted an issue to the subject in 2005.

A 2006 Army Field Manual (since superseded) presented interim doctrine on the collection of open source intelligence.

Legislative measures to improve the process of declassifying classified national security information were introduced by Sen. Ron Wyden in the pending intelligence authorization act for FY2022. But they were included in the classified annex so their substance and import are not publicly known.

“I remain deeply concerned about the failures of the Federal Government’s obsolete declassification system,” Sen. Wyden wrote in a statement that was included in the new Senate Intelligence Committee report on the intelligence bill. “I am therefore pleased that the classified annex to the bill includes several amendments I offered to advance efforts to accelerate declassification and promote declassification reform.”

But the nature of those amendments has not been disclosed. “As absurd as it is to be opaque about the topic of declassification I’m afraid I can’t tell you more right now,” a Committee staffer said. “Sorry.”

“Putting aside the irony of declassification amendments found only in a classified annex, I can confirm that we’re tracking it,” said an intelligence community official.

It requires some effort to think of declassification reforms that could themselves be properly classified. The idea seems counterintuitive. But there are agency declassification guides that are classified because they detail the precise boundaries of classified information. And any directive to declassify an entirely classified topical area would have to begin by identifying the classified subject matter that is to be declassified.

“True perfection seems imperfect,” says the Tao Te Ching (trans. Stephen Mitchell), and “true straightness seems crooked.” Still, some things are truly crooked.

After failing to publicly disclose its proposed legislative agenda, the Department of Defense will soon be required to do so.

Each year DoD generates proposals for legislative actions that it would like to see incorporated in the coming year’s national defense authorization act. These may include tweaks to existing statutes, requests for relief from reporting requirements, or something more ambitious.

It used to be the case — until two years ago — that those legislative proposals were routinely posted on the website of the DoD Office of Legislative Counsel where they could be publicly examined and evaluated. Then, without explanation, DoD stopped posting them.

Last spring, one of DoD’s more far-reaching but publicly undisclosed proposals sought to rescind a requirement to produce an unclassified version of the Future Years Defense Program budget document. (Secrecy News, 03/30/20),

That proposal was not adopted in the House-Senate conference version of the FY2021 defense authorization act (HR 6395).

But Congress did adopt a provision (sec. 1059) crafted by Reps. Katie Porter and Jackie Speier that will now require DoD to publish its legislative proposals online within 21 days of their transmission to Congress.

*    *    *

Last month, the Departments of Energy and Defense denied a request from the Federation of American Scientists to disclose the current size of the U.S. nuclear arsenal and the number of warheads that have been dismantled. Such information had previously been declassified and published by the executive branch each year through 2017. But for now it remains classified. See “Trump Administration Again Refuses To Disclose Nuclear Weapons Stockpile Size” by Hans Kristensen, FAS Strategic Security, December 3.

Any time a US federal agency proposes a major action that “has the potential to cause significant effects on the natural or human environment,” they must complete an Environmental Impact Statement, or EIS. An EIS typically addresses potential disruptions to water supplies, transportation, socioeconomics, geology, air quality, and other factors in great detail––meaning that one can usually learn a lot about the scale and scope of a federal program by examining its Environmental Impact Statement.

What does all this have to do with nuclear weapons, you ask?

Well, given that the Air Force’s current plan to modernize its intercontinental ballistic missile force involves upgrading hundreds of underground and aboveground facilities, it appears that these actions have been deemed sufficiently “disruptive” to trigger the production of an EIS.

To that end, the Air Force recently issued a Notice of Intent to begin the EIS process for its Ground-Based Strategic Deterrent (GBSD) program––the official name of the ICBM replacement program. Usually, this notice is coupled with the announcement of open public hearings, where locals can register questions or complaints with the scope of the program. These hearings can be influential; in the early 1980s, tremendous public opposition during the EIS hearings in Nevada and Utah ultimately contributed to the cancellation of the mobile MX missile concept. Unfortunately, in-person EIS hearings for the GBSD have been cancelled due to the ongoing Covid-19 pandemic; however, they’ve been replaced with something that might be even better.

The Air Force has substituted its in-person meetings for an uncharacteristically helpful and well-designed website––gbsdeis.com––where people can go to submit comments for EIS consideration (before November 13th!). But aside from the website being just a place for civic engagement and cute animal photos, it is also a wonderful repository for juicy––and sometimes new––details about the GBSD program itself.

The website includes detailed overviews of the GBSD-related work that will take place at the three deployment bases––F.E. Warren (located in Wyoming, but responsible for silos in Wyoming, Colorado, and Nebraska), Malmstrom (Montana), and Minot (North Dakota)––plus Hill Air Force Base in Utah (where maintenance and sustainment operations will take place), the Utah Test and Training Range (where missile storage, decommissioning, and disposal activities will take place), Camp Navajo in Arizona (where rocket boosters and motors will be stored), and Camp Guernsey in Wyoming (where additional training operations will take place).

Taking a closer look at these overviews offers some expanded details about where, when, and for how long GBSD-related construction will be taking place at each location.

For example, previous reporting seemed to indicate that all 450 Minuteman Launch Facilities (which contain the silos themselves) and “up to 45” Missile Alert Facilities (each of which consists of a buried and hardened Launch Control Center and associated above- or below-ground support buildings) would need to be upgraded to accommodate the GBSD. However, the GBSD EIS documents now seem to indicate that while all 450 Launch Facilities will be upgraded as expected, only eight of the 15 Missile Alert Facilities (MAF) per missile field would be “made like new,” while the remainder would be “dismantled and the real property would be disposed of.”

Currently, each Missile Alert Facility is responsible for a group of 10 Launch Facilities; however, the decision to only upgrade eight MAFs per wing––while dismantling the rest––could indicate that each MAF could be responsible for up to 18 or 19 separate Launch Facilities once GBSD becomes operational. If this is true, then this near-doubling of each MAF’s responsibilities could have implications for the future vulnerability of the ICBM force’s command and control systems.

The GBSD EIS website also offers a prospective construction timeline for these proposed upgrades. The website notes that it will take seven months to modernize each Launch Facility, and 12 months to modernize each Missile Alert Facility. Once construction begins, which could be as early as 2023, the Air Force has a very tight schedule in order to fully deploy the GBSD by 2036: they have to finish converting one Launch Facility per week for nine years. It is expected that construction and deployment will begin at F.E. Warren between 2023 and 2031, followed by Malmstrom between 2025 and 2033, and finally Minot between 2027 and 2036.

Although it is still unclear exactly what the new Missile Alert Facilities and Launch Facilities will look like, the EIS documents helpfully offer some glimpses of the GBSD-related construction that will take place at each of the three Air Force bases over the coming years.

In addition to the temporary workforce housing camps and construction staging areas that will be established for each missile wing, each base is expected to receive several new training, storage, and maintenance facilities. With a single exception––the construction of a new reentry system and reentry vehicle maintenance facility at Minot––all of the new facilities will be built outside of the existing Weapons Storage Areas, likely because these areas are expected to be replaced as well. As we reported in September, construction has already begun at F.E. Warren on a new underground Weapons Generation Facility to replace the existing Weapons Storage Area, and it is expected that similar upgrades are planned for the other ICBM bases.

Finally, the EIS documents also provide an overview of how and where Minuteman III disposal activities will take place. Upon removal from their silos, the Minutemen IIIs will be transported to their respective hosting bases––F.E. Warren, Malmstrom, or Minot––for temporary storage. They will then be transported to Hill Air Force Base, the Utah Test and Training Range (UTTR), or Camp Najavo, in Arizona. It is expected that the majority of the rocket motors will be stored at either Hill AFB or UTTR until their eventual destruction at UTTR, while non-motor components will be demilitarized and disposed of at Hill AFB. To that end, five new storage igloos and 11 new storage igloos will be constructed at Hill AFB and UTTR, respectively. If any rocket motors are stored at Camp Navajo, they will utilize existing storage facilities.

After the completion of public scoping on November 13th (during which anyone can submit comments to the Air Force via Google Form), the next public milestone for the GBSD’s EIS process will occur in spring 2022, when the Air Force will solicit public comments for their Draft EIS. When that draft is released, we should learn even more about the GBSD program, and particularly about how it impacts––and is impacted by––the surrounding environment. These particular aspects of the program are growing in significance, as it is becoming increasingly clear that the US nuclear deterrent––and particularly the ICBM fleet deployed across the Midwest––is uniquely vulnerable to climate catastrophe. Given that the GBSD program is expected to cost nearly $264 billion through 2075, Congress should reconsider whether it is an appropriate use of public funds to recapitalize on elements of the US nuclear arsenal that could ultimately be rendered ineffective by climate change.

Additional background information:

• United States nuclear forces, 2020

• Construction of New Underground Nuclear Warhead Facility At Warren AFB

This publication was made possible by generous contributions from the Carnegie Corporation of New York, the John D. and Catherine T. MacArthur Foundation, the New Land Foundation, the Ploughshares Fund, and the Prospect Hill Foundation. The statements made and views expressed are solely the responsibility of the author.

Image sources: Air Force Global Strike Command. 2020. “Environmental Impact Statement for the Ground-Based Strategic Deterrent Deployment and Minuteman III Decommissioning and Disposal: Public Scoping Materials.”

Last January the Trump Administration formally notified Congress under the War Powers Act of a US drone strike that killed Iranian Maj. Gen. Qasem Soleimani.

But unlike all known prior War Powers Act notifications, the report on the Soleimani killing was classified in its entirety. (Previous reports sometimes included a classified annex together with the unclassified notification.)

Senator Chris Murphy (D-Conn.) said that was unacceptable. “There’s a veil being pulled over the foreign policy of this country,” he told the Washington Post. See “Six months later, Democrats keep working to unearth a big national security secret” by Greg Sargent, The Washington Post Plum Line, July 21, 2020.

Senator Murphy asked the White House to reconsider the classification. “It is critical that decisions regarding the use of force consistent with the War Powers Act be provided in unclassified form to the American people,” he wrote. He received no response.

So he turned to the Interagency Security Classification Appeals Panel (ISCAP), a group of executive branch agency representatives that is authorized by executive order to decide appeals of challenges to classification.

The initiative failed. Last month the ISCAP said that it would not consider such an appeal from Senator Murphy or from any other member of Congress.

The ISCAP refusal leaves the War Powers Act report on Soleimani fully classified and it keeps the public in the dark about the asserted legal and factual basis for killing him. But it highlights an important gap in classification policy that could be corrected in a new Administration and a new Congress.

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When information is classified improperly or unnecessarily, the opportunities for correcting such actions are quite limited.

A provision for government employees to formally challenge the classification of certain information was introduced in President Clinton’s 1995 executive order 12958 (section 1.9) and has remained in effect until the present (executive order 13526, section 1.8). The provision states:

“Authorized holders of information who, in good faith, believe that its classification status is improper are encouraged and expected to challenge the classification status of the information. . . .”

Importantly, this provision was not intended as a courtesy or a privilege. In fact, it was not intended for the sake of the challengers at all. Rather, the purpose of such classification challenges was to promote the integrity of the classification system and to help make the system self-correcting, as far as possible. That’s why potential challengers are “encouraged and expected” to present challenges even if they don’t personally care about the issue at all.

There were 954 such challenges in fiscal year 2016, according to the Information Security Oversight Office, and 167 of those resulted in the classification being overturned in whole or in part. In FY 2017, there were 721 challenges, 58 of which led to changes in classification.

No member of Congress had ever invoked this provision before. But Senator Murphy had some reason to believe that such a classification challenge could be effective in the case of the Soleimani war powers report.

The sticking point was the definition of “authorized holders of [classified] information,” who are the only ones that can present a classification challenge under the executive order.

One would suppose that a member of Congress who is in possession of a classified report that was officially provided to him or her by the executive branch would certainly qualify as an “authorized holder.” In fact, the executive branch has a binding legal obligation to provide certain classified defense and intelligence information to Congress.

But it turns out that the executive order (in section 6.1c) narrowly defines an “authorized holder of classified information” as one who has been vetted by an agency and found eligible for access. (Oddly, this limiting definition was only added in 2009.) Since Members of Congress are cleared for classified information by virtue of their office and do not undergo agency vetting, they are not “authorized persons” for purposes of the executive order.

This does not make any sense from a policy point of view. Just as executive branch employees and contractors are “encouraged and expected” to point out potential errors in classification, so should Members of Congress be, and for the same reasons.

But the classification challenge procedure is constrained by the language of the executive order, said Mark Bradley, director of the Information Security Oversight Office and executive secretary of the ISCAP.

“We have to do what the Order says, not what we want,” said Mr. Bradley, who early in his career served as an aide to Senator Daniel P. Moynihan.

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Mr. Bradley suggested that Senator Murphy could direct his challenge to the Public Interest Declassification Board, which unlike the ISCAP is specifically authorized to review congressional challenges to the classification of certain records.

But the PIDB is a much weaker body than the ISCAP. While the ISCAP can “decide” on classification challenges (subject to appeal), the PIDB can only review and “recommend.” And while the ISCAP has actually overturned existing classifications on numerous occasions, no PIDB recommendation has ever had the same effect.

The PIDB did previously handle one congressional request for declassification review, said John Powers of the ISOO and PIDB staff, in or around 2014. For the most part, the subject document in that case turned out to be properly classified, substantively and procedurally, in the PIDB’s view. But the Board forwarded a limited redaction proposal that would have allowed partial release to the Obama White House for consideration. The White House did not act on it.

Senator Murphy turned to the PIDB to request declassification review of classified intelligence concerning foreign interference in the upcoming US elections, the Washington Post reported yesterday.

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The statement by ISOO director Mark Bradley cited above — “We have to do what the Order says, not what we want” — is worth further consideration.

What he was saying is that those who are responsible for enforcing checks and balances have to follow a code of conduct and have to adhere to a set of principles, whether or not they personally agree with the outcome in a particular case.

The problem is that those who abuse the system to classify (or sometimes to selectively declassify) information improperly recognize no such constraint. This discrepancy is vexatious.

It means that the checks and balances of the current system are most effective when they are least necessary. When everyone is acting in good faith and with an honest commitment to shared (constitutional) values, most disagreements can be resolved over time. Some compromise is usually possible.

But when good faith and principled self-restraint are lacking, and one side aims to maximize its power at any cost, the current structure of checks and balances has proved to be largely helpless.

Even if the ISCAP had agreed to consider Senator Murphy’s classification challenge, and if it had actually agreed with him that all or part of the War Powers Act notification concerning the Soleimani killing was not properly classified, that might not have been the end of the story.

“Panel decisions are committed to the discretion of the Panel,” according to the executive order (sect. 5.3e), “unless changed by the President.” But that means that a hypothetical ISCAP decision to declassify the notification could be overruled by the same White House that classified the whole thing in the first place.

So while good policies are necessary, they are not enough. For our constitutional system of government to work, we also need officials who are, if not the “angels” that James Madison spoke of, at least dedicated public servants who share a common purpose.

Senator Murphy’s office said that he would soon introduce legislation to authorize and require the ISCAP to consider classification challenges from Congress.

*    *    *

The current infrastructure for declassifying classified records that are no longer sensitive is already being overwhelmed by a deluge of historical records that are accumulating faster than they can be processed. This situation was discussed in a September 9 hearing before the Senate Select Committee on Intelligence and is the subject of new legislation (S. 3733) introduced by Senators Wyden and Moran.

That is an issue of efficiency and productivity that probably has a technological solution, as the Public Interest Declassification Board has argued.

A harder problem is over-classification, in which information is classified improperly or unnecessarily, or at a higher level than is warranted. Such classification errors can be corrected, at least hypothetically, through classification challenges, Freedom of Information Act requests, and other means.

A still harder problem concerns information that is properly classified — in the sense that it meets the criteria of the executive order — but nevertheless belongs in the public domain because of its fundamental policy importance. Examples include classified reports of torture, mass surveillance, or foreign election interference.

To the extent that such information is “properly classified” in a formal sense, it is currently beyond the reach of the Freedom of Information Act, mandatory declassification review, or classification challenges. When it does become public, that is often due to unauthorized disclosures. While agency heads may declassify classified information in the public interest as a matter of discretion (under section 3.1d of the executive order), they rarely do so and there is no mechanism for asking or inducing them to.

So along with adequate basic functionality and improved procedures for challenging improper classification, any future classification system also needs to tackle the problem of “properly classified” information that should not be classified.

The Department of Defense is asking Congress to expand its authority to recall retired members of the military to active duty in the event of a war or national emergency.

The DoD proposal predates the turmoil that followed the killing of George Floyd by a police officer in Minneapolis last week and the activation of National Guard units in numerous states.

Current law (10 USC 688a) permits the military to recall no more than 1,000 retirees in order “to alleviate a high-demand, low-density military capability” or when necessary “to meet wartime or peacetime requirements.” DoD wants to remove that 1,000 person limit.

“This proposal . . . would allow the Secretary of a military department to recall more than 1,000 retirees to active duty during a war or national emergency,” the Pentagon said in its May 4 request, which is one of numerous legislative proposals for the FY 2021 defense authorization act.

“Waiving the 1,000 member limitation on this temporary recall authority and the authority’s expiration date in time of war or of national emergency will increase the Department of Defense’s flexibility and agility in generating forces with the expertise required to respond rapidly and efficiently during such a period.”

“Given the unpredictability of war and national emergencies, such as the COVID 19 pandemic, waiver of the 1,000-member limit will better posture the Department to respond to unpredictable and rapidly evolving situations,” DoD said.

There is no reason to be concerned that such authority would ever be abused, the Pentagon told Congress, because “The Office of the Secretary of Defense will ensure the amount of recalled retirees does not exceed the number warranted by mission requirements.”

Last March, the US Army contacted more than 800,000 retired soldiers to inquire if they would be willing to assist with military’s pandemic response, according to a report in Military.com.

The Congressional Research Service summarized the constitutional and statutory authorities and limitations governing the military role in disaster relief and law enforcement in The Use of Federal Troops for Disaster Assistance: Legal Issues, November 5, 2012.

The US Air Force wants to renew and expand the withdrawal of public land for the Nevada Test and Training Range (NTTR), where it conducts flight testing, classified research and development projects, and weapons tests. A Defense Department proposal to Congress would increase the amount of land currently withdrawn from public use by more than 10 percent.

The NTTR is already “the largest contiguous air and ground space available for peacetime military operations in the free world,” according to a 2017 Air Force fact sheet.

But it’s not big enough to meet future requirements, the Pentagon told Congress in an April 17 legislative proposal.

“The land withdrawal that makes up the Nevada Test and Training Range (NTTR) expires in 2021. The NTTR is the Air Force’s most vital test and training asset and must be continued,” the DoD proposal said. But even more is needed, according to DoD: “Maintaining the status quo by simply extending the current withdrawal will not be sufficient to meet 5th generation requirements.”

“This proposal would expand the current withdrawal, enacted in the FY2000 NDAA and set to expire in 2021, and make that withdrawal for a period of 25 years.”

Approximately 300,000 acres of additional land would be withdrawn under the proposal, for a total of around 3.2 million acres that would be reserved “for use by the Secretary of the Air Force for certain military purposes.”

As of now, “The range occupies 2.9 million acres of land, 5,000 square miles of airspace which is restricted from civilian air traffic over-flight and another 7,000 square miles of Military Operating Area, or MOA, which is shared with civilian aircraft,” the 2017 USAF fact sheet said. “The 12,000-square-nautical mile range provides a realistic arena for operational testing and training aircrews to improve combat readiness. A wide variety of live munitions can be employed on targets on the range.”

Many of the hundreds or thousands of reports that are submitted to Congress by executive branch agencies each year may be published online pursuant to a provision in the new Consolidated Appropriations Act (HR 1158, section 8092).

That provision states that any agency that is funded by the Act shall post on its website any report to Congress “upon the determination by the head of the agency that it shall serve the national interest.”

The impact of the latter condition is unclear, particularly since no criteria for satisfying the national interest are defined. In any case, reports containing classified or proprietary information would be exempt from publication online, and publication of all reports would be deferred for at least 45 days after their receipt by Congress, diminishing their relevance, timeliness and news value.

Reports to Congress often contain new information and perspectives but they are an under-utilized resource particularly because they are not readily available.

Some otherwise unpublished 2019 reports address, for example, DoD use of open burn pits, political boycotts of Israel, and the financial cost of war post-9/11.

The newly enacted FY2020 national defense authorization act alone includes hundreds of new, renewed, or modified reporting requirements, according to an unofficial tabulation.