Under a requirement recently enacted by Congress, intelligence agency employees who hold clearances for Sensitive Compartmented Information (SCI) must report any employment with a foreign government entity for up to two years after leaving their US government job.

An internal US Air Force memorandum implementing the new requirement for Air Force intelligence personnel was released under the Freedom of Information Act yesterday.

See Reporting Certain Post-Government Employment by Holders of Sensitive Compartmented Information (SCI) Accesses, Air Force Guidance Memorandum 2015-14-04-O, 5 November 2015.

SCI is classified information that is derived from intelligence sources or methods.

The reporting requirement concerning foreign government employment was adopted by Congress in the FY 2015 intelligence authorization act (section 305) and was enacted into law as 50 U.S.C. 3073a.

It is unclear from the public record whether any specific incident or circumstance prompted the new reporting requirement.

The topic of “secret law” is probed at great length in a new law review paper, which substantiates the concept and suggests a set of principles for addressing it. See “Coming to Terms with Secret Law” by Dakota S. Rudesill, to be published in the Harvard National Security Journal.

Secret law is defined here as “legal authorities that require compliance [but] that are classified or otherwise withheld from the public.”

The paper provides extensive citations to relevant source material (including a few references to Secrecy News), thoughtful consideration of arguments for and against the status quo, and a novel compilation of congressional reports that include classified addenda. (h/t Lawfare)

The House of Representatives is expected to approve a new package of amendments to the Freedom of Information Act this week, in a bill known as the FOIA Oversight and Implementation Act of 2015.

The sponsors of the bill said it “would strengthen the Freedom of Information Act (FOIA) to increase transparency and accountability in government, and improve access to government records for citizens. It amends FOIA to provide for more disclosure of records, through both proactive disclosure and limitations on the use of exemptions. [It] also encourages enhanced agency compliance with statutory requirements and improves the FOIA process for both agencies and requesters.”

The bill would codify a presumption of openness, limit the application of the exemption for deliberative records, facilitate electronic submission of FOIA requests, strengthen the Office of Government Information Services (the FOIA ombudsman), mandate Inspector General reviews of FOIA processing, and several other steps. Detailed justification for the bill is provided in a January 7 report from the House Committee on Oversight and Government Reform.

The bill was subsequently modified by the House Intelligence Committee to affirm that its provisions would not require the disclosure of properly classified information or of information that “would adversely affect intelligence sources and methods” that are protected. The term “adversely affect” is not defined but is clearly intended to limit disclosure.

Truth be told, the Freedom of Information Act is a strange law that seems engineered to create an unresolvable tension if not a complete stalemate.

The FOIA empowers individual members of the public (including me and you) to impose a legally binding obligation on a government agency. But while there are no limits on the number or type of requests that a requester may submit at no cost, agencies are nominally supposed to accommodate the demand within a fixed period and with fixed resources. And though it only takes minutes to submit a request, the time required by an agency to fulfill even a simple request is much longer. A sophisticated systems analysis is not needed to anticipate the growth of the backlogs that have in fact developed.

In a further conundrum, those agencies that are more responsive to the FOIA process thereby tend to generate more demand. There is little point in submitting a FOIA request to the Defense Intelligence Agency, to pick one example, because they won’t produce a substantive response in this decade. But other agencies that do respond faithfully are rewarded– with more requests.

The best way to untangle and realign these conflicting imperatives is not clear. More proactive disclosure of information might help, or it might simply shift the burden to more specialized and challenging requests. But just encouraging and making it easier to file FOIA requests is probably not the solution.

There are “substantial gaps” in the ability of the Department of Defense to counter Islamic State propaganda and messaging, the Commander of U.S. Special Operations Command (SOCOM) informed Congress earlier this year.

But now Congress has moved to narrow some of those gaps.

Until recently, the Pentagon’s authority to act in this area had been deliberately curtailed by Congress in order to preserve a civilian lead role for the State Department’s public diplomacy program.

“Congress has expressed concern with DOD engaging violent extremist propaganda on the Internet, except in limited ways,” wrote General Joseph L. Votel, the SOCOM Commander, in newly published responses to questions for the record from a March 18, 2015 hearing of the House Armed Services Committee (at page 69).

“They [Congress] tend to view… efforts to influence civilians outside an area of conflict as Public Diplomacy, the responsibility of the Department of State or Broadcasting Board of Governors.”

By contrast, “We [at US Special Operations Command] believe there is a complementary role for the Department of Defense in this space which acknowledges the need for a civilian lead, but allows DOD to pursue appropriate missions, such as counter-recruitment and reducing the flow of foreign fighters,” he wrote.

General Votel suggested that “An explicit directive from Congress outlining the necessity of DOD to engage in this space would greatly enhance our ability to respond.”

Now he has it.

Without much fanfare, something like the directive from Congress that General Votel requested was included in the FY2016 defense authorization bill that was signed into law by President Obama on November 25:

“The Secretary of Defense should develop creative and agile concepts, technologies, and strategies across all available media to most effectively reach target audiences, to counter and degrade the ability of adversaries and potential adversaries to persuade, inspire, and recruit inside areas of hostilities or in other areas in direct support of the objectives of commanders.”

That statement was incorporated in Section 1056 of the 2016 Defense Authorization Act, which also directed DOD to perform a series of technology demonstrations to advance its ability “to shape the informational environment.”

Even with the requested authority, however, DOD is poorly equipped to respond to Islamic State propaganda online, General Votel told the House Armed Services Committee.

“Another gap exists in [DOD’s] ability to operate on social media and the Internet, due to a lack of organic capability” in relevant languages and culture, not to mention a compelling alternative vision that would appeal to Islamic State recruits. The Department will be forced to rely on contractors, even as it pursues efforts to “improve the Department’s ability to effectively operate in the social media and broader online information space.”

And even with a mature capacity to act, DOD’s role in counter-propaganda would still be hampered by current policy when it comes to offensive cyber operations, for which high-level permission is required, he said.

“The ability to rapidly respond to adversarial messaging and propaganda, particularly with offensive cyberspace operations to deny, disrupt, degrade or corrupt those messages, requires an Execute Order (EXORD) and is limited by current U.S. government policies.”

“The review and approval process for conducting offensive cyberspace operations is lengthy, time consuming and held at the highest levels of government,” Gen. Votel wrote. “However, a rapid response is frequently required in order to effectively counter the message because cyber targets can be fleeting, access is dynamic, and attribution can be difficult to determine.”

No immediate solution to that policy problem is at hand, as far as is known.

The difficulty that the U.S. government has had in confronting the Islamic State on the level of messaging, influence or propaganda is more than an embarrassing bureaucratic snafu; it has also tended to expedite the resort to violent military action.

“Overmatched online, the United States has turned to lethal force,” wrote Greg Miller and Souad Mekhennet of the Washington Post, in a remarkable account of the Islamic State media campaign. (“Inside the surreal world of the Islamic State’s propaganda machine,” November 20).

*    *    *

The House Armed Services Committee now produces the most informative hearing volumes of any congressional committee in the national security domain. Beyond the transcripts of the hearings themselves, which are of varying degrees of interest, the published volumes typically include additional questions that elicit substantive new information in the form of agency responses to questions for the record.

The new hearing volume on US Special Operations Command notes, for example:

*    USSOCOM currently deploys 20-30 Military Information Support Teams to embassies around the world. They are comprised of forces “specially trained in using information to modify foreign audiences’ behavior” [page 69].

*    “Only one classified DE [directed energy] system is currently fielded by USSOCOM and being used in SOF operations” [page 61]. Other directed energy technology development programs have failed to meet expectations.

*    Advanced technologies of interest to SOCOM include: signature reduction technologies; strength and endurance enhancement; unbreakable/unjammable, encrypted, low probability to detect/low probability of intercept communications; long-range non-lethal vehicle stopping; clandestine non-lethal equipment and facility disablement/defeat; advanced offensive and defensive cyber capabilities; weapons of mass destruction render safe; chemical and biological agent defeat [page 77].

Another recently published House Armed Services Committee hearing volume is “Cyber Operations: Improving the Military Cybersecurity Posture in an Uncertain Threat Environment.”

 

Updated below

The Government Accountability Office this week quietly published a list of titles of its restricted reports that have not been publicly released because they contain classified information or controlled unclassified information.  A new link to “Restricted Products” appears at the bottom of the GAO homepage (under Reports & Testimonies).

“This list is intended to keep Congress, federal agencies, and the public informed of the existence of these products. The list consists of all such classified or controlled products issued since September 30, 2014 and will be updated each time a new report is issued,” the GAO webpage says.

“We did not issue a statement or announcement” concerning the new listing, said Timothy L. Minelli of GAO Congressional Relations.

A congressional staffer said the move was prompted by concerns expressed by some Members of Congress and staff that they were unaware of the restricted reports, since they had not been indexed or archived by GAO.

Publication of the titles of restricted GAO reports “was not necessarily universally desired by everyone in Congress,” the staffer said, and “it took about a year” to resolve the issue. But “GAO deserves a lot of credit. They decided it was the right thing to do, and they did it.”

Although primarily aimed at congressional consumers, the new webpage also serves to inform the public. GAO is not subject to the Freedom of Information Act, but will usually entertain requests for records anyway. However, GAO is not authorized to release information that has been classified or controlled by an executive branch agency.

There are several limitations to the new disclosure policy. It does not reflect restricted GAO reports that were generated prior to 2014. It will not cite titles that are themselves classified. And it will not include reports that focus on an individual intelligence agency.

“We excluded titles of products primarily focused on an element of the intelligence community to be consistent with the general practices of the IG [Inspector General] Offices within that IC community, who generally don’t post these titles,” said Mr. Minelli of GAO. “Only titles of products that that are primarily focused on an element of the IC won’t be listed, which we believe will be a very small number, likely less than a handful per year.”

“More common are GAO products that address activities/operations of IC elements in the context of a broader set of questions we are answering, and the titles of these products are being posted,” he said.

“Finally, in a number of cases and pending the classification and sensitivity reviews conducted by the appropriate agencies, GAO will follow its usual practice of trying to issue public versions of classified and sensitive-but-unclassified  products that have had classified and SBU material removed.  These reports are posted on our website and publicly available,” he said.

Update: A listing of GAO restricted report titles from 1971-2011 was obtained and published by GovernmentAttic.org, which also obtained copies of the first page of each GAO report issued prior to 1972 that remains classified.

Despite an explicit statutory requirement to keep Congress “fully and currently informed” about the proliferation of weapons of mass destruction, the President may withhold proliferation-related information from Congress if he determines that doing so could harm the national security, according to a sweeping opinion from the Justice Department Office of Legal Counsel (OLC) that was prepared in 2003.

The opinion, written by then-OLC deputy John C. Yoo, was released this week under the Freedom of Information Act. See Presidential Authority to Protect National Security Information, January 27, 2003.

The OLC opinion takes an uncompromising view of presidential authority. It reviews multiple statutes that mandate disclosure of various types of information to Congress, including requirements to report on WMD proliferation and to keep the intelligence committees “fully and currently informed of all intelligence activities.” It then concludes that those statutes cannot override, modify or limit the President’s constitutional prerogatives.

“Despite Congress’s extensive powers under the Constitution, its authorities to legislative [sic] and appropriate cannot constitutionally be exercised in a manner that would usurp the President’s authority over foreign affairs and national security,” the OLC opinion said.

Even to a layman, the Yoo opinion seems muddled and poorly argued, in several respects.

*    Yoo claims that the statute requiring reporting of WMD proliferation was obviated by a signing statement issued by President Clinton in 1999. “In signing the legislation, President Clinton stated that section 1131 and similar provisions raised serious constitutional questions.” But upon examining the text of that 1999 signing statement, one finds that Clinton did not mention section 1131 at all, and the President’s comments there have no bearing on WMD proliferation or congressional reporting requirements.

*    Yoo uses the word “disclosure” throughout the opinion to refer to classified reporting to Congress, which excludes public release of the information. At no point does he try to explain how such reporting through classified channels “could harm the national security” if the information never became public.

*    Yoo does not acknowledge or mention the Supreme Court’s 1952 Youngstown decision which addressed Presidential authority in the face of contrary statutory imperatives: “When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” To sustain his position, Yoo cannot admit the existence of any relevant constitutional powers of Congress, since those would diminish the President’s freedom of action.

*    Yoo does allow that “the President can disclose such information as a matter of inter-branch comity to members of Congress of his choosing when he judges it consistent with the national security.” But this is incoherent, even by Yoo’s own lights, since whenever disclosure is consistent with national security, the President’s authority to withhold it evaporates. Then disclosure to Congress would not be a matter of comity at all, but a binding requirement.

The six page OLC opinion does have some positive features.

*    It was prompted by an inquiry to OLC from then-White House Counsel Alberto R. Gonzales as to “whether the President has the constitutional authority to withhold sensitive national security information from Congress involving the proliferation of weapons of mass destruction by other nations.” So the very fact of the inquiry is an indication that the authority to withhold was not self-evident even to the George W. Bush White House.

*    The opinion discloses the title of at least one previously unknown OLC opinion on Congressional Notification for Certain Special Operations (November 1, 2002).

It is unclear whether the 2003 Yoo OLC opinion has had any enduring impact or influence on executive branch policy.

The first known public reference to the opinion appeared in a declassified version of the 2009 Joint Inspector General report on the President’s Surveillance Program (Stellar Wind) that was obtained by the New York Times this year in response to a FOIA lawsuit.

Footnote 192 on page 167 of the DOJ volume of the Joint Report (p. 504 in the NYT PDF) reads in part: “Citing… a 2003 OLC opinion, Gonzales’s letter stated that the President has the constitutional authority to define and control access to the nation’s secrets, ‘including authority to determine the extent to which disclosure may be made outside the Executive Branch’.”

The reference to the 2003 OLC opinion was first noticed by Marcy Wheeler last May.

In its response to a Freedom of Information Act request, the Office of Legal Counsel said that the 2003 Yoo opinion “is protected by the deliberative process and attorney-client privileges and [is] exempt from mandatory disclosure pursuant to FOIA Exemption Five.”

Nevertheless, wrote OLC Special Counsel Paul P. Colborn, “we are releasing it to you as a matter of discretion.”

Several new reports from the Congressional Research Service examine the implications of the 40% excise tax on high-cost employer-sponsored health care coverage, known as the “Cadillac tax,” that will take effect in 2018.

Excise Tax on High-Cost Employer-Sponsored Health Coverage: In Brief, August 14, 2015

The Excise Tax on High-Cost Employer-Sponsored Health Insurance: Estimated Economic and Market Effects, August 20, 2015

The Excise Tax on High-Cost Employer-Sponsored Health Coverage: Background and Economic Analysis, August 20, 2015

Other newly-updated CRS reports introduce the basic legislative functions of Congress, perhaps for novice Members and staff.

Resolving Legislative Differences in Congress: Conference Committees and Amendments Between the Houses, August 3, 2015

House Committee Hearings: Preparation, August 25, 2015

House Committee Hearings: Arranging Witnesses, August 25, 2015

House Committee Hearings: Scheduling and Notification, August 25, 2015

Calendars of the House of Representatives, August 25, 2015

Pairing in Congressional Voting: The House, August 25, 2015

Quorum Requirements in the House: Committee and Chamber, August 25, 2015

Amendments in the Senate: Types and Forms, August 25, 2015

Amendments in the House: Types and Forms, August 21, 2015

How Measures Are Brought to the Senate Floor: A Brief Introduction, August 5, 2015

Introducing a House Bill or Resolution, August 6, 2015

House Committee Hearings: Witness Testimony, August 10, 2015

Types of Committee Hearings, August 10, 2015

Delegates to the U.S. Congress: History and Current Status, August 25, 2015

With the impending retirement of the longtime Librarian of Congress, James H. Billington, there is an opportunity for a fundamental reconsideration of the function and operation of the Library of Congress. In particular, the time may be ripe for a massive expansion of the Library’s digitized holdings, enabling universal public access to its historic and cultural riches.

There are “Great New Possibilities for the Library of Congress!” according to the headline of an article by Harvard professor Robert Darnton in the New York Review of Books, August 13 (sub. req’d, exclamation mark in the original).

Dr. Billington (who oddly goes unmentioned by name in the NY Review article) is a figure of exceptional stature, and he has been for a long time. The 1959 book Tolstoy or Dostoevsky by the eminent literary critic George Steiner included an acknowledgment of thanks to Billington along with Isaiah Berlin, Alexandre Koyré, and J. Robert Oppenheimer, among other icons of a prior era. More recently, in 2004, former FAS President Jeremy J. Stone facilitated a trip by Dr. Billington to Iran to meet with the director of that country’s National Library, the first such visit to Iran by any U.S. government official in many years. (Originally “unannounced” and confidential, the trip was, ahem, disclosed by the Federation of American Scientists and reported in the New York Times, and it is now cited in Billington’s official bio.)

But one thing Dr. Billington has not been, by most accounts, is a digital pioneer who could lead the Library of Congress boldly into the unfolding media and communications environment of the present day. (However, his bio notes to the contrary that “His proposal in 2005 for the creation of a World Digital Library was endorsed by UNESCO in 2007 and launched online at www.wdl.org in April 2009.”)

The time for a change may have come.

“While other great libraries were leading the way into the digital future, [the Library of Congress] failed to manage its own information technology,” wrote Prof. Darnton in the NY Review.

“A new regime at the Library of Congress (LOC) could digitize its collections and link them with collections in other libraries, archives, and museums so that everyone has access to the resources that are everyone’s heritage… The repository of the LOC would then serve as the heart of a digital circulatory system that would energize the entire country,” Darnton wrote.

Perhaps so, although the chain of causality in that vision is a little vague. But much less ambitiously, the arrival of new leadership at the Library of Congress might also set the stage for a change of policy authorizing public access to non-confidential products of the Congressional Research Service, which is formally a part of the Library (though CRS too goes unmentioned in the NY Review article).

Until then, unauthorized access will have to do. New and updated reports from CRS that Congress has not seen fit to make publicly available online include the following.

A Guide to U.S. Military Casualty Statistics: Operation Freedom’s Sentinel, Operation Inherent Resolve, Operation New Dawn, Operation Iraqi Freedom, and Operation Enduring Freedom, updated August 7, 2015

Department of Homeland Security Appropriations: FY2016, August 7, 2015

FY2016 Appropriations for the Census Bureau and Bureau of Economic Analysis, August 7, 2015

Obergefell v. Hodges: Same-Sex Marriage Legalized, August 7, 2015

Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China: Issues for Congress, updated August 7, 2015

“Congressional Research Belongs to the Public,” declared a New York Times editorial today, and it is “absurd” that Congress would place any obstacles in the way of public access to Congressional Research Service reports, which provide impartial analyses of current policy issues.

Yet such obstacles continue to exist, and most CRS reports are not publicly disclosed by Congress.

A measure to require the online publication of non-confidential CRS products (H.Res. 34) was introduced in the House of Representatives last January by Rep. Leonard Lance (R-NJ) and Rep. Martin Quigley (D-IL). But like several prior initiatives along the same lines, there is no sign thus far that their pending measure will advance into law or policy.

For the time being, at least, it is easier to circumvent congressional restrictions on distribution of CRS reports than it is to modify those restrictions.

Noteworthy new and updated CRS reports obtained by Secrecy News include the following.

Cybersecurity and Information Sharing: Comparison of Legislative Proposals in the 114th Congress, June 12, 2015

Chinese Land Reclamation in the South China Sea: Implications and Policy Options, June 16, 2015

Prospects for Democracy in Hong Kong: The 2017 Election Reforms, June 9, 2015

China’s Economic Rise: History, Trends, Challenges, and Implications for the United States, updated June 14, 2015

Turkey After June 2015 Elections: Erdogan and the AKP Fall Short, CRS Insights, June 16, 2015

Financing the U.S. Trade Deficit, updated June 11, 2015

Regular Vetoes and Pocket Vetoes: An Overview, updated June 9, 2015

Cuba: Issues for the 114th Congress, updated June 12, 2015

Fact Sheet: Selected Highlights of the FY2016 Defense Appropriations Bills (H.R. 2685 and S. 1558), June 16, 2015

War Funding and the Budget Control Act: In Brief, June 11, 2015

Train and Equip Program for Syria: Authorities, Funding, and Issues for Congress, updated June 9, 2015

U.S. Foreign Aid to Israel, updated June 10, 2015

Navy Ford (CVN-78) Class Aircraft Carrier Program: Background and Issues for Congress, updated June 12, 2015

Navy Littoral Combat Ship (LCS)/Frigate Program: Background and Issues for Congress, updated June 12, 2015

Intelligence Authorization Legislation for FY2016: Selected Provisions, CRS Insights, June 15, 2015

Invasive Species: Issues in Brief, May 22, 2015

Not everyone values the kind of policy analysis that CRS performs, particularly since CRS reports are even-handed to a fault, and they refrain from advocacy of specific outcomes. As such, they do not immediately advance any particular policy agenda.

In fact, the Congressional Research Service may be an institution in jeopardy. CRS “has lost about one-fifth of its staff since 1993,” according to the Center for American Progress. “The House and Senate legislative branch appropriations bills both cut CRS funding by 14.2 percent from its FY 2010 inflation-adjusted level.” See “Congress Makes Itself Dysfunctional with Legislative Branch Cuts” by Harry Stein and Ethan Gurwitz, June 15.

At the same time, and despite official congressional strictures on publication, CRS is playing an increasingly prominent role in informing the public on a wide range of policy issues. CRS reports are cited numerous times each day in national news stories— which often link to the reports on the Federation of American Scientists website or those of other non-congressional publishers.

The House of Representatives yesterday approved its version of the FY 2016 intelligence authorization act (HR 2596).

The bill includes “several” new reporting requirements intended “to enhance Congress’ role in and understanding of the classification process,” said Rep. Doug Collins (R-GA). One of these requirements is for a report to Congress noting each occasion in the past 5 years in which non-compartmented intelligence reporting has been disseminated through a (more restrictive) compartmented channel.

The bill passed by the House preserves a proposed new restriction on the Privacy and Civil Liberties Oversight Board barring its access to covert action information. The Washington Post reported last week that the restriction was prompted by an op-ed written by the Board chairman suggesting that the Board might be able to assist in oversight of covert targeted killing operations.

Also yesterday, the Senate voted 78-21 to affirm a ban on torture and to limit the use of interrogation techniques to those that are included in Army Field Manual 2-22.3 (Appendix M). The measure was sponsored by Senators McCain and Feinstein.

“Current law already bans torture, as well as cruel, inhuman, or degrading treatment or punishment,” Sen. McCain noted.

“However,” he said, “this amendment is still necessary because [after 9/11, so-called ‘enhanced’] interrogation techniques were able to be used, which were based on a deeply flawed legal theory, and those techniques, it was said, did not constitute ‘torture’ or ‘cruel, inhuman, or degrading treatment.’ These legal opinions could be written again.” The amendment is intended to preclude that possibility.

“I ask my colleagues to support this amendment,” Sen. Feinstein said, “and by doing so, we can recommit ourselves to the fundamental precept that the United States does not torture–without exception and without equivocation–and ensure that the mistakes of our past are never again repeated in the future.”

Sen. John Cornyn (R-TX), who opposed the amendment, said “the effect of this policy is to hand our entire interrogation playbook to groups such as the self-declared Islamic State of Iraq and the Levant, ‘ISIL,” Al Qaeda, and the Taliban, which is a profound mistake.”

Updated below

The House Intelligence Committee inserted language in the pending intelligence authorization bill that would bar access by the Privacy and Civil Liberties Oversight Board (PCLOB) to classified information pertaining to covert action.

“Nothing in the statute authorizing the Privacy and Civil Liberties Oversight Board should be construed to allow that Board to gain access to information the executive branch deems to be related to covert action,” according to the new Committee report on the Intelligence Authorization Act for FY 2016 (section 306), published yesterday.

To the extent that covert action is employed against terrorism and is therefore within the scope of PCLOB’s charter, the House Committee action would preclude PCLOB oversight of the implications of such covert actions for privacy and civil liberties.

That “unduly restricts” PCLOB’s jurisdiction, according to Rep. James Himes (D-CT), a member of the House Intelligence Committee who unsuccessfully sought to modify the provision.

It is possible that there is some tacit rivalry between PCLOB and the congressional intelligence oversight committees, particularly since the PCLOB found that the Section 215 program for collection of telephone metadata was unlawfully implemented while the oversight committees had approved and embraced it. (The recurring failure of the intelligence oversight committees to accurately represent broader congressional and public perspectives over the past decade is a subject that remains to be addressed.)

By contrast, the same House bill directed that the DNI shall provide the Government Accountability Office with the access to information that it needs to perform its authorized functions. The relevant directive (ICD 114) “shall not prohibit the Comptroller General [i.e., the head of the GAO] from obtaining information necessary to carry out an audit or review at the request of the congressional intelligence and defense committees.”

The new House Committee measure may be gratuitous in any event, since the PCLOB is an executive branch agency and is already subject to the authority of the Director of National Intelligence to protect intelligence sources and methods, and to regulate access accordingly.

The PCLOB has recently posted a plan for its review of two counterterrorism-related activities governed by Executive Order 12333.

“The Board plans to concentrate on activities of the CIA and NSA, and to select activities that involve one or more of the following: (1) bulk collection involving a significant chance of acquiring U.S. person information; (2) use of incidentally collected U.S. person information; (3) targeting of U.S. persons; and (4) collection that occurs within the United States or from U.S. companies,” the PCLOB plan said.

Yesterday, Senators Dianne Feinstein and John McCain introduced an amendment to the 2016 defense authorization act “to reaffirm the prohibition on torture.” The amendment would limit interrogation techniques to those included in the unclassified Army Field Manual 2-22.3 (Appendix M). And it would require regular review of “to ensure that Army Field Manual 2-22.3 complies with the legal obligations of the United States and reflects current, evidence-based, best practices for interrogation that are designed to elicit reliable and voluntary statements and do not involve the use or threat of force.” The amendment had not yet been voted on as of yesterday.

Update: The origins of the House Intelligence Committee’s apparent animosity towards the Privacy and Civil Liberties Oversight Board were explored by Ellen Nakashima in Upset over op-ed, GOP lawmakers seek to curb privacy board, Washington Post, June 10, 2015.

The Congressional Research Service (CRS) will continue to be barred from releasing its reports to the public, the House Appropriations Committee said yesterday in its report on legislative branch appropriations for the coming year.

“The bill contains language which provides that no funds in the Congressional Research Service can be used to publish or prepare material to be issued by the Library of Congress unless approved by the appropriate committees,” the House report said.

Because Congress prohibits CRS from publishing its own reports, most CRS reports are only available to the public from non-governmental organizations that take the initiative to gather and publish them. Many such reports can be found in a collection that is maintained and regularly updated on the Federation of American Scientists website.

In the new spending bill, the House Committee ominously rejected a CRS request for a $5 million budget increase in 2016, and allocated $107 million, the same as the 2015 level.

“The Legislative Branch must set itself as an example for fiscal restraint while continuing to serve the Nation. This bill will require strict fiscal discipline on the part of all congressional offices and all agency heads in the Legislative Branch,” the report said.

But from another perspective, “this bill falls short in providing Congress with the resources needed to fulfill its constitutional duties,” said Reps. Debbie Wasserman Schultz and Nita M. Lowey in minority views. “The Legislative Branch bill provides another year of flat funding, the third in a row.”

In a move that is perhaps even more worrisome for CRS, “The Committee directs the Library of Congress to commission an independent survey of all Members and committees of the House of Representatives to ascertain their fundamental and optimal requirements for services and support from the Library of Congress and especially the Congressional Research Service.”

The problem here is that the CRS services that congressional offices are likely to find most “useful” are not necessarily those that are most “valuable.”

What is often deemed most useful is having CRS analysts assist congressional staff in responding to constituent mail, including eccentric or demented requests for information.

Why is the US Postal Service “stockpiling ammunition”? That sort of question helped lead CRS analyst Kevin Kosar to leave his job, he explained in an article in the Washington Monthly earlier this year (“Why I Quit the Congressional Research Service,” Jan/Feb 2015).

What is most valuable, by contrast, is not necessarily of immediate use to individual Members and Committees. That is the kind of in-depth policy analysis that can only be helpful to those whose policy preferences are not predetermined by ideology or affiliation. CRS reports are now cited ever more frequently by reporters and others trying to come to grips with complicated policy issues that entail both costs and benefits.

This particular policy analysis function, however, may not be considered a “fundamental and optimal requirement” by every member of the House.

“Even when we did find time and space to do serious research, lawmakers ignored our work or trashed us if our findings ran contrary to their beliefs,” wrote former CRS analyst Kosar.