In a number of national security policy areas, there is a long-term trend in favor of greater transparency and disclosure. For example, the U.S. Army openly published a manual last week on Techniques for Information Collection During Operations Among Populations (ATP 3-55.4). It supersedes and replaces a previous publication from 2007 (FM 2-91.6) that was for restricted distribution and was marked For Official Use Only.

But in some other areas, the arrow of transparency is pointed backwards and previously unclassified categories of records are becoming newly restricted or classified.

That appears to be the case with The National Military Strategy of the United States of America. It was publicly released as an unclassified document in 2015, but the forthcoming edition that is to be completed by the end of next year will be classified.

“The [next] national military strategy will be a classified document,” said Marine Gen. Joseph Dunford, chairman of the Joint Chiefs of Staff, in a March 29 speech at the Center for Strategic and International Studies.

He acknowledged that up to now the National Military Strategy was “an unclassified document that has historically, you know, been written for the public.” But the next Strategy will not be made public, although “we will certainly articulate to the public the guts of a national military strategy,” he said.

He did not elaborate on the rationale for classification of the hitherto unclassified document, except to say that “in my mind, what the national military strategy ought to do is drive the development of our operation[al] plans. And more importantly, drive the development of viable options that we would need in a crisis [or] contingency.” His speech was reported in Defense News (April 5) and the US Naval Institute News (March 29).

The Congressional Research Service said “it can be assumed” that Special Operations Forces “will figure prominently in DOD’s new classified military strategy document.” But CRS warned that “a high or increased level of U.S. SOF involvement in the nation’s new classified military strategy could come with a price…. there could be a tendency to assign them an inordinate amount of responsibility under this new strategic construct.” See U.S. Special Operations Forces (SOF): Background and Issues for Congress, updated April 8, 2016.

A new U.S. Army manual addresses the challenges of intelligence support for air and missile defense programs.

“A large number of adversary countries possess or are trying to acquire TBMs [tactical ballistic missiles] and Advanced Air Breathing Threats (ABTs) (i.e. Fixed-Wing (FW) aircraft, Rotary-Wing (RW) aircraft, Unmanned aircraft systems (UAS), Anti-Radiation Missiles (ARMs), and Cruise Missiles (CMs)), for prestige and/or military purposes,” the Army manual stated.

“These aerial and TBM threats have the potential to give the adversary a military advantage against the United States (US) and multinational forces. The threat the adversary presents is a complex, multi-dimensional, intelligence problem.”

To meet this emerging threat, the Army prescribes an Air and Missile Defense (AMD) Intelligence Preparation of the Battlefield (IPB) process, as outlined in the manual. See Air and Missile Defense Intelligence Preparation of the Battlefield, ATP 3-01.16, March 31, 2016.

“AMD IPB identifies facts and assumptions about the battlefield environment and the air and missile defense threat. AMD IPB determines enemy air and missile defense courses of action (COAs), their associated branches and sequels, and describes the operating environment for air and missile defense operations. This supports commander and staff planning and the development of friendly COAs.”

“Applied properly, AMD IPB provides for the timely and effective neutralization and/or destruction of the aerial and TBM threat, while minimizing the requirement for friendly AMD assets. ”

Air and missile defense systems may be vulnerable to attack through cyberspace, the Army manual noted, so consideration should be given to “what mitigations can be put into effect to limit or negate the effects of an attempted cyber-attack on the AMD system.”

The Department of Defense last week asked Congress to enact a new exemption from the Freedom of Information Act for military tactics, techniques and procedures, as well as rules of engagement, that are unclassified but considered sensitive. A similar request by DoD last year was not acted upon by Congress.

DoD justified its current proposal as a military necessity, and as a matter of common sense:

“The effectiveness of United States military operations is dependent upon adversaries, or potential adversaries, not having advance knowledge of the tactics, techniques, and procedures that will be employed in such operations. If an adversary or potential adversary has knowledge of such information, the adversary will be better able to identify and exploit any weaknesses, and the defense of the homeland, success of the operation, and the lives of U.S. military forces will be seriously jeopardized.”

This year’s proposal was drafted as an amendment to the existing FOIA exemption for DoD critical infrastructure. So it has some noteworthy features that were not included in last year’s proposal: The use of the exemption would require a written determination by the Secretary of Defense that the public interest does not outweigh the need to protect the information. The Secretary would also have to prepare a written statement of the basis for the use of the exemption. “All such determinations and statements of basis shall be available to the public, upon request….”

The large majority of military doctrinal publications are unclassified and publicly available. A relatively small number are classified and unavailable. But there is a middle category of unclassified publications whose distribution is restricted, which the proposed amendment aims to preserve.

Some recent Army titles that fall in that middle category include, for example: Special Forces Air Operations (ATP 3-18.10), Special Operations Communications System (ATP 3-05.60), and Countering Explosive Hazards (ATP 3-34.20). The Department of Defense does not readily release such titles today, even in the absence of the proposed amendment. But in order to withhold them under FOIA, it must engage in some dubious legal acrobatics, or else practice delay and defiance.

The proposed new FOIA amendment was included in a package of legislative proposals that DoD transmitted to Congress on March 10, 2016.

*

The FOIA Improvement Act (S. 337 and HR 653), which includes several provisions that are intended to promote increased disclosure through FOIA, currently awaits consideration in the Senate. It has already been passed by the House. “It is my hope that Democrats and Republicans can come together and pass this commonsense legislation this week,” said Sen. Patrick Leahy yesterday in a Sunshine Week address at the National Archives.

But the FOIA Improvement Act does not confront the structural flaws in the law that have yielded the current logjam in FOIA processing. Nor does it acknowledge the radical mismatch between the amount of money and personnel that would be required to implement the FOIA as written and the funds that Congress has actually appropriated for that purpose.

To the contrary, “No additional funds are authorized to carry out the requirements of this Act,” the FOIA Improvement Act states.

The term “climate change” was included for the first time in the latest revision of the Department of Defense Dictionary of Military and Associated Terms (Joint Publication 1-02), published last week.

Climate change is officially defined by DoD as “Variations in average weather conditions that persist over multiple decades or longer that encompass increases and decreases in temperature, shifts in precipitation, and changing risk of certain types of severe weather events.”

The new entry in the DoD Dictionary reflects a growing awareness of the actual and potential impacts of climate change on military operations.

The definition was originally proposed in the January 2016 DoD Directive 4715.21 on Climate Change Adaptation and Resilience.

“The DoD must be able to adapt current and future operations to address the impacts of climate change in order to maintain an effective and efficient U.S. military,” the January directive stated.

The domestic use of unmanned aerial systems (UAS, or drones) by the Department of Defense in support of civil authorities has been conducted in accordance with law and policy, the DoD Inspector General said in a 2015 report of an evaluation that was released last week.

“DoD is fully compliant with laws, regulations, and national policies for UAS support to civil authorities,” the DoD IG report said.

“We found no evidence that any DoD entity using UAS’s or associated PED [processing, exploitation, and dissemination] in support of domestic civil authorities, to date, has violated or is not in compliance with all statutory, policy, or intelligence oversight requirements.”

Oddly, that conclusion was marked “For Official Use Only.”  See Evaluation of DoD Use of Unmanned Aircraft Systems (UAS) for Support to Civil Authorities, DoD Inspector General report DODIG-2015-097, March 20, 2015. The partially redacted report was released last week in response to a Freedom of Information Act request.

DoD support to civil authorities using drones can be provided, given proper authorization, for domestic emergencies, support to law enforcement, or to provide added security for high-profile “special events.”

Domestic use of drones by DoD for such purposes is comparatively rare. The DoD Inspector General reported that between 2006 and 2015 there were “less than twenty events that could be categorized as DoD UAS support to domestic civil authorities,” and that that number included “both approved and disapproved requests.”

The Department of Defense provided updated Guidance for the Domestic Use of Unmanned Aircraft Systems last year in a February 17, 2015 policy memorandum.

“Armed DoD UAS may not be used in the United States for other than training, exercises, and testing purposes,” the memo said.

The U.S. Army yesterday issued an updated manual to assist soldiers in identifying aircraft on the battlefield so as to determine whether they are friendly, hostile or something else.

“Soldiers must be knowledgeable in the identification of all types of aerial platforms ranging from fixed wing attack aircraft to unmanned aircraft (UA), in order to protect friendly forces and to prevent fratricide.”

The task is easier said than done, however, even for an experienced observer.

The new manual characterizes the wing, engine, fuselage, and tail (or WEFT) of “a multitude of both hostile and friendly aircraft platforms.”

But due to national security classification, the catalog of aircraft is incomplete.

“This publication, by nature, has a built-in time lag, and some aircraft may still be under development or classified at the time of writing, but may be fielded or unclassified at, or after, publication.”

See Visual Aircraft Recognition, TC 3-01.80, February 29, 2016.

The new edition of the manual was released by the Army for unlimited public distribution. The 2006 manual that it replaces (FM 3-01.80), by contrast, was intended only for U.S. government agencies and contractors.

Changes in the cyber threat environment require the Army to be able to rapidly reprogram its own military software, a newly updated Army Regulation directs.

“Warfare is rapidly moving into a new domain: cyberspace. This will affect warfighting in all domains, and the Army will take measures to adapt to the cyberspace environment.”

“This increased responsiveness demands shortened timelines to combat enemy threats as they adapt to new technology and to new methods of employment.”

“RSR [Rapid Software Reprogramming] will be required to become even more adaptive, automated, and integrated with weapons systems operating in the EMS [electromagnetic spectrum].”

“This policy gives the Army a process which enables soldiers a reach-back RSR capability that will assist commanders to attain tactical superiority, achieve surprise, gain and retain the initiative, maintain awareness of new and emerging threats, and obtain decisive results…,” the unclassified Regulation said.

The Assistant Secretary of the Army (ALT) will “Ensure that sensor-based weapons and CEMA [Cyber Electromagnetic Activities] systems are developed using software reprogrammable signature detection, classification, and response capabilities that can be responsive and enabling to EW [Electronic Warfare], spectrum management and cyber operations.”

See Software Reprogramming for Cyber Electromagnetic Activities, Army Regulation 525-15, 19 February 2016.

As part of its international defense cooperation activities, the Department of Defense has long been involved in supporting military institutions in various allied nations.

Yesterday, a new DoD directive was issued to formally structure and to assign responsibility for executing what is called the Defense Institution Building (DIB) program.

“DoD, in coordination with other appropriate U.S. departments and agencies and when authorized by law, will develop the capabilities and capacity of allied and partner nation defense institutions in support of defense strategy,” according to the new directive. See Defense Institution Building (DIB), DoD Directive 5205.82, January 27, 2016.

The directive does not mention any specific nation in which such development is to be performed, but it would presumably include countries such as Afghanistan.

The Washington Post reported this week that “There is a broad recognition in the Pentagon that building an effective Afghan army and police force will take a generation’s commitment, including billions of dollars a year in outside funding and constant support from thousands of foreign advisers on the ground.” (“The U.S. was supposed to leave Afghanistan by 2017. Now it might take decades” by Greg Jaffe and Missy Ryan, January 26).

Defense institution building (DIB) is intended to “increase a partner nation’s ability to organize, administer, and oversee its defense institutions to meet its security needs and contribute to regional and international security more effectively,” the directive said. It will “enable recipients to conduct or support unilateral, combined, or coalition operations that advance U.S. national security interests.”

DIB should be conducted in such a way as to “promote principles vital to the establishment of defense institutions that are effective, accountable, transparent, and responsive to national political systems, especially regarding good governance, oversight of security forces, respect for human rights, and the rule of law. DIB should contribute to the establishment or strengthening of democratic governance of defense and security forces.”

The new DoD directive cited over a dozen existing statutes that it said provided legal authority for specific DIB activities.

The Department of Defense is organizing itself to address the effects of climate change on the U.S. military, some of which are already being felt.

“The DoD must be able to adapt current and future operations to address the impacts of climate change in order to maintain an effective and efficient U.S. military,” according to a Pentagon directive that was issued last week. See Climate Change Adaptation and Resilience, DoD Directive 4715.21, January 14, 2016.

Among other things, the new directive requires the Under Secretary of Defense for Intelligence and the Director of National Intelligence to coordinate on “risks, potential impacts, considerations, vulnerabilities, and effects [on defense intelligence programs] of altered operating environments related to climate change and environmental monitoring.”

“The Department of Defense sees climate change as a present security threat, not strictly a long-term risk,” DoD said last year in a report to Congress.

“We are already observing the impacts of climate change in shocks and stressors to vulnerable nations and communities, including in the United States, and in the Arctic, Middle East, Africa, Asia, and South America…. Although DoD and the Combatant Commands cannot prepare for every risk and situation, the Department is beginning to include the implications of a changing climate in its frameworks for managing operational and strategic risks prudently.” See National Security Implications of Climate-Related Risks and a Changing Climate, DoD report to Congress, July 2015.

“We are almost done with a baseline survey to assess the vulnerability of our military’s more than 7,000 bases, installations, and other facilities,” wrote then-Secretary of Defense Chuck Hagel in a 2014 Climate Change Adaptation Roadmap. “In places like the Hampton Roads region in Virginia, which houses the largest concentration of US military sites in the world, we see recurrent flooding today, and we are beginning work to address a projected sea-level rise of 1.5 feet over the next 20 to 50 years.”

“Politics or ideology must not get in the way of sound planning,” Secretary Hagel wrote.

“The concept of global warming was created by and for the Chinese in order to make U.S. manufacturing non-competitive,” said Republican presidential candidate Donald J. Trump in a 2012 tweet that has been retweeted more than 24,000 times. (h/t Ed Husain)

 

The role of armed forces in an open society may be likened to a potent medicine that is life-saving in the proper dosage but lethal beyond a certain proportion. Military forces have proved to be indispensable for securing the political space in which free institutions can flourish, but they may also trample or destroy those institutions if unconstrained by law and wise leadership.

A rich and thoughtful account of how the U.S. military has protected, supported, clashed with and occasionally undermined constitutional government in this country is presented in the new book “Soldiers on the Home Front: The Domestic Role of the American Military” by William C. Banks and Stephen Dycus (Harvard University Press, 2016).

The authors, who are law professors, trace the role of the military back to its constitutional roots, which are not as precisely defined as they might have been. The Framers of the Constitution “knew that troops would sometimes be needed to help enforce the civilian laws. They just neglected to tell us precisely when.”

And so, Banks and Dyson write, U.S. military forces have played a multiplicity of domestic roles over time, both constructive and abusive.

“In the middle of the twentieth century, [troops] helped integrate Southern schools and universities, and they were sent into cities around the country to help control race riots. Federal forces were also used to suppress political protests during the Vietnam War. All the while, the unique capabilities of the military were welcomed in communities recovering from natural disasters.”

The authors devote chapters to military detention of U.S. citizens, trial by military commission, domestic military intelligence gathering, and the imposition of martial law– each of which is a matter of sometimes astonishing historical fact, not simply of speculative possibility, from Revolutionary times to the Civil War and World War II to our own post-9/11 era.

One of the surprising themes that emerges from “Soldiers on the Home Front” is that even after centuries of legislation, litigation and historical experience, many of the underlying policy questions and some of the basic legal issues remain at least partly unresolved:

“Whether a president has inherent constitutional authority, or may be authorized by Congress, to order the military imprisonment of a civilian without charges, perhaps indefinitely, is a question that has not yet been definitively answered by the courts. As a practical matter, however, the president may do so if no court will intervene.” (p. 116)

“Even after more than two centuries of experience, appropriate limits on military investigations of civilians are ill-defined and controversial.” (p. 167)

“The small number of episodic judicial opinions about martial law have left many questions unanswered. With no mention of martial law in the text of the Constitution, we might have expected Congress to adopt policy for resort to such a drastic measure. But it has so far failed to do so.” (p. 211)

“Ambiguity remains about who in the United States may be imprisoned, upon what grounds, and pursuant to what process.” (p. 249)

“The rules, in other words, are a mess.” (p. 263)

More fundamentally, “Soldiers on the Home Front” reminds us that constitutional values are not self-enforcing, and are liable to be eroded in times of political stress or national emergency. Defending those values is the task of an alert, informed citizenry. This fine book should help.

The Department of Defense proposed a new exemption from the Freedom of Information Act last year for information on unclassified “military tactics, techniques and procedures.” The measure was not adopted by Congress in the FY 2016 defense authorization act, but DoD is preparing to pursue it again this year.

The proposal that was submitted to Congress last year would have exempted from disclosure military doctrine that “could reasonably be expected to risk impairment of the effective operation of the armed forces” and that had not already been publicly disclosed.

“The effectiveness of any United States military operation is dependent upon the enemy not having knowledge of how U.S. military forces will be used,” DoD stated in its justification for the exemption. “Commanders need to have all advantages at their disposal to be successful on the battlefield; if the enemy has knowledge of the tactics, techniques, or procedures that will be used, a crucial advantage is lost and success of the operation and the lives of U.S. military forces are seriously jeopardized.”

DoD claimed that it would have been able to exercise this withholding authority until 2011, when a Supreme Court ruling in the case Milner v. Department of the Navy“significantly narrowed” the scope of FOIA Exemption 2. “This proposal would reinstate that protection to ensure effective operation of U.S. military forces and to save lives.”

The first thing to say about the proposed DoD FOIA exemption is that, given the realities of government information security today, any prudent military commander would have to assume that the adversary already possesses the unclassified military doctrine documents that the exemption would protect from public disclosure. The government has repeatedly been unable to protect many types of information of much higher sensitivity.

If that were not the case, the proposed DoD exemption would make sense up to a point. But it stops making sense where DoD “tactics, techniques and procedures” are themselves the focus of appropriate public attention. For example, U.S. techniques for the interrogation of detained persons have been the subject of intense public controversy as to whether they are illegal or inhumane. Likewise, offensive cyber operations involve important public policy questions that go beyond the tactical interests of the military. The DoD proposal does not appear to make allowance for mandatory FOIA disclosure in such compelling cases.

In another even more ambitious proposed FOIA amendment, DoD last year sought to nullify the 2011 Supreme Court decision in Milner altogether, and to reinstate the pre-Milner status quo with its more expansive withholding authority.

“The effect of the decision in Milner is that it exposes for public release certain critical information previously interpreted as being exempt from disclosure under the ‘High 2’ exemption,” the DoD proposal explained. “The Administration believes that, following the Supreme Court’s decision, there is a critical gap in the exemptions in the current FOIA statute. This proposal is designed to close that critical gap.”

Both DoD FOIA proposals — the specific exemption for unclassified tactics, techniques and procedures, and the broad nullification of the Milner decision — were excluded by Congress from the FY 2016 defense authorization act “due to jurisdictional concerns and process issues (but not content issues),” according to an internal DoD planning document.

But both are expected to be presented again this year. DoD will advance its proposed FOIA exemption for military doctrine, while the proposed Milneramendment, with its government-wide implications, has been transferred to the Department of Justice for separate submission to Congress.

To the eyes of a military planner, a city presents “an elaborate combination of horizontal, vertical, interior, and exterior forms superimposed on a landscape’s natural relief, drainage, and vegetation.”

A newly reissued U.S. Army manual contemplates the difficulties facing military action in the urban environment with a focus on intelligence collection. See Intelligence Support to Urban Operations, TC 2-91.4, December 2015.

“With the continuing growth in the world’s urban areas and increasing population concentrations in urban areas, the probability that Army forces will conduct operations in urban environments is ever more likely,” the manual states.

“Providing intelligence support to operations in the complex urban environment can be quite challenging. It may at first seem overwhelming. The amount of detail required for operations in urban environments, along with the large amounts of varied information required to provide intelligence support to these operations, can be daunting.”

“In urban terrain, friendly forces will encounter a variety of potential threats, such as conventional military forces, paramilitary forces, insurgents or guerrillas, terrorists, common criminals, drug traffickers, warlords, and street gangs. These threats may operate independently or some may operate together. Individuals may be active members of one or more groups.”

“The enemy situation is often extremely fluid–locals friendly to us today may be tomorrow’s belligerents. Adversaries seek to blend in with the local population to avoid being captured or killed. Enemy forces who are familiar with the city layout have an inherently superior awareness of the current situation.”

“Finally, U.S. forces often fail to understand the motives of the urban threat due to difficulties of building cultural awareness and situational understanding for a complex environment and operation.”