If the Attorney General decided to withhold portions of the pending report of the Special Counsel, he might justify his decision by citing legal protections for grand jury information and for executive privilege.

But there are exceptions to both of these categories, and Congress has tools of its own to pursue the desired information, the Congressional Research Service said in a new assessment.

With respect to grand jury information in the Special Counsel report, “Congress could opt to seek documents or testimony from grand jury witnesses themselves,” CRS said.

As for executive privilege, it “is generally qualified, and can be surmounted (in court) if Congress can show an overriding need for the information.” See The Special Counsel’s Report: Can Congress Get It?, CRS Legal Sidebar, March 8, 2019 And see, relatedly, The Special Counsel’s Report: What Do Current DOJ Regulations Require?, CRS Legal Sidebar, March 7, 2019.

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

Membership of the 116th Congress: A Profile, March 7, 2019

Foreign Agents Registration Act: An Overview, CRS In Focus, updated March 7, 2019

United States European Command: Overview and Key Issues, CRS In Focus, March 12, 2019

The War Powers Resolution: Concepts and Practice, updated March 8, 2019

Strategic Competition and Foreign Policy: What is “Political Warfare”?, CRS In Focus, March 8, 2019

Defense Primer: A Guide for New Members, updated March 8, 2019

Military contractors are such an integral part of U.S. military forces that “most military operations will include contracted support,” a newly updated Pentagon manual explains.

In fact, “While some limited-duration operations, such as noncombatant evacuation operations, may use limited contracted support, all major operations will involve significant contracted support.”

Aside from their prominent role in logistics, contractors also provide linguist, signal and security services.

In some circumstances, contractors may even substitute for US military forces. “The use of contracted support as an alternative to deploying US forces may have other benefits, including minimizing the military footprint in the operational area, reducing force operational tempo, and improving domestic US political support or buy-in,” the manual said.

Contractors are considered indispensable, and they can sometimes be used to circumvent policy restrictions on military deployments. “The continual introduction of high-tech equipment, coupled with force structure and manning reductions, mission-specific force cap restrictions, and high operating tempo, means contracted support will augment military forces in most operations.”

Among the various types of military contractors are armed private security contractors (PSCs) that are used to guard personnel and facilities. “PSC-provided services, more than any other contracted service, can have a direct impact (sometimes a very negative impact) on civil-military aspects of the operation,” the Pentagon manual cautioned.

As a general matter, vigilant oversight is needed to ensure the integrity of the contracting process, since “the procurement of supplies and services in support of military operations can be prone to fraud, waste, and abuse (FWA), even more so in a foreign contingency where there are many contracts with local firms.” See Operational Contract Support, Joint Publication 4-10, March 4, 2019.

A new congressional tally of military construction projects that have unobligated fund balances turned up hundreds of current projects fitting that description. See “FY2017-2019 Military Construction Projects/Programs with Unobligated Balances.”

Because the President declared a national emergency, some of the funds for those military construction activities could be repurposed in order to pay for barriers along the border with Mexico, pursuant to 10 USC 2808.

Declaring that a national emergency exists made it possible “to secure additional resources” to construct barriers along the border, the Trump White House said on February 15.

The White House said that up to $3.6 billion in unobligated Department of Defense military construction funds would now “be available to build the border wall.”

Funds are said to be “obligated” as the result of a purchase, contract or other government action that incurs a legal obligation to pay them. Until that happens, they are “unobligated” even though they have been appropriated for a specific purpose.

There is a considerable amount of military construction money that has not been obligated.

“According to DOD information, the department reported unobligated balances in the military construction and family housing accounts totaling $13.3 billion at the end of FY2018,” the Congressional Research Service noted recently.

Even though the money may be legally available, it is not “free.”

“All of this money has been assigned for other purposes, so it really then comes to what can — what are you going to trade off, because when you say tradeoff, it really is a tradeoff,” said Acting Secretary of Defense Patrick Shanahan on February 16.

The President’s declaration of national emergency faces a legislative challenge as well as pending litigation.

Noteworthy new publications from the Congressional Research Service include the following.

Definition of National Emergency under the National Emergencies Act, CRS Legal Sidebar, March 1, 2019

Foreign Affairs Overseas Contingency Operations (OCO) Funding: Background and Current Status, CRS In Focus, updated March 4, 2019

EU Data Protection Rules and U.S. Implications, CRS In Focus, updated February 7, 2019

Stock Buybacks: Background and Reform Proposals, CRS Legal Sidebar, February 27, 2019

U.S. Nuclear Weapons Policy: Considering “No First Use”, CRS Insight, updated March 1, 2019

Military tacticians use deception to induce an opponent to act against his own interests, or to refrain from acting when it would be advantageous. The theory and techniques of military deception were detailed this week in a new Army publication for military planners that also implicitly illuminates the role of deception in other contexts.

In one form, deception may increase an adversary’s uncertainty so as to hinder decision-making. In another form, it may decrease uncertainty to encourage the adversary to make a decision that is mistaken.

“Ambiguity-increasing deception is designed to generate confusion and cause mental conflict in the enemy decision maker. Anticipated effects of ambiguity-increasing deception can include a delay to making a specific decision, operational paralysis, or the distribution of enemy forces to locations far away from the intended location of the friendly efforts,” the Army manual said.

Deceptive actions “can cause the target to delay a decision until it is too late to prevent friendly mission success. They can place the target in a dilemma for which no acceptable solution exists. They may even prevent the target from taking any action at all. This type of deception is typically successful with an indecisive decision maker who is known to avoid risk.”

On the other hand, “Ambiguity-decreasing deceptions manipulate and exploit an enemy decision maker’s pre-existing beliefs and bias through the intentional display of observables that reinforce and convince that decision maker that such pre-held beliefs are true. Ambiguity-decreasing deceptions cause the enemy decision maker to be especially certain and very wrong… Planners often have success using these deceptions with strong-minded decision makers who are willing to accept a higher level of risk.”

Even deception has limits and rules, according to the Army. For one thing, the U.S. military is not supposed to deliberately practice deception against the U.S. government or the public.

“Deception activities, including planning efforts, are prohibited from explicitly or implicitly targeting, misleading, or attempting to influence the U.S. Government, U.S. Congress, the U.S. public, or the U.S. news media. Legal staff review all deception activities to eliminate, minimize, or mitigate the possibility that such influence might occur.”

Nor, according to international convention, should instruments of negotiation be abused as tools of deception.

“Flags of truce must not be used surreptitiously to obtain military information or merely to obtain time to affect a retreat or secure reinforcements, or to feign a surrender in order to surprise an enemy.”

See Army Support to Military Deception, Field Manual 3-13.4, 26 February 2019.

By its nature, the effectiveness of military deception depends on secrecy. Specific applications of military deception are addressed in classified publications such as DoD Instruction S-3604.01. The latest (2017) version of Joint Publication 3-13.4 on Military Deception is restricted in distribution.

But the new Army manual is unclassified and was published without restriction.

New and updated publications from the Congressional Research Service, some but not all of which are now published at crsreports.congress.gov, include the following.

National Emergency Powers, updated February 27, 2019

Department of Defense Use of Other Transaction Authority: Background, Analysis, and Issues for Congress, updated February 22, 2019

Defense Primer: Electronic Warfare, CRS In Focus, February 26, 2019

U.S. Foreign Assistance, CRS In Focus, updated February 25, 2019

NAFTA Renegotiation and the Proposed United States-Mexico-Canada Agreement (USMCA), updated February 26, 2019

Immigration: U.S. Asylum Policy, February 19, 2019

Uyghurs in China, CRS In Focus, updated February 15, 2019

Firearms Background Checks Under H.R. 8 and H.R. 1112, CRS In Focus, updated February 22, 2019

Arms Sales: Congressional Review Process, updated February 25, 2019

Federal Records: Types and Treatments, CRS In Focus, February 26, 2019

A new free trade agreement (FTA) between the European Union and Japan places the US at a disadvantage, at least temporarily, the Congressional Research Service said. The new agreement entered into force this month.

The two trading partners negotiated what Japan called the “world’s largest, free, industrialized economic zone” without the US partly in response to the Trump Administration’s combative trade policy and its withdrawal from existing trade negotiations.

“The EU and Japan have expressed concerns over recent U.S. tariffs imposed on their products and the perceived waning in U.S. support for the multilateral trading system,” according to a new CRS brief.

“In the absence of a U.S. FTA with either major economy, certain U.S. industries could face competitive disadvantages or lost market share. . . as the EU and Japan enjoy preferential access to each other’s markets,” CRS said.

As the new agreement is implemented, “the United States will be under increased stakeholders’ pressure to secure comparable access to these important markets,” the CRS report said. See EU-Japan FTA: Implications for U.S. Trade Policy, CRS In Focus, February 7, 2019.

Other noteworthy new publications from the Congressional Research Service include the following.

A Brief Comparison of Two Climate Change Mitigation Approaches: Cap-and-Trade and Carbon Tax (or Fee), CRS In Focus, February 12, 2019

Mail and Wire Fraud: A Brief Overview of Federal Criminal Law, updated February 11, 2019

Electrification May Disrupt the Automotive Supply Chain, CRS In Focus, February 8, 2019

A Code of Conduct for the Supreme Court? Legal Questions and Considerations, CRS Legal Sidebar, February 6, 2019

Science and Technology Issues in the 116th Congress, February 6, 2019

The World Oil Market and U.S. Policy: Background and Select Issues for Congress, updated February 4, 2019

Venezuela Oil Sector Sanctions: Market and Trade Impacts, CRS Insight, updated February 11, 2019

The Committee on Foreign Investment in the United States, CRS In Focus, updated February 5, 2019

In apparent disregard of criticism from President Trump, two new Inspector General reports on aspects of the wars in Afghanistan, Syria and Iraq were openly published this week.

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

Despite that rebuke, however, the reports produced this week were published as usual.

There was no basis for a change. According to the Special Inspector General for Afghanistan Reconstruction (SIGAR), no policy directive implementing the President’s remarks last month was ever generated, and so the continuing release of SIGAR reports has not been affected.

The latest SIGAR report finds that DoD is delivering more military helicopters to the Afghan Air Force than can be used. “Based on the current UH-60 delivery schedule, it is unlikely that there will be enough pilots trained before all 159 UH-60s are delivered. DOD runs the risk of wasting U.S. taxpayer dollars to purchase aircraft the AAF and SMW [Afghan security forces] cannot fly or maintain.” See the report here.

Meanwhile, another DoD Inspector General report released this week finds that “ISIS remains a potent force of battle-hardened and well-disciplined fighters” — a finding that is at odds with the President’s public remarks. A classified appendix to the IG report that was not released addressed topics such as “ISIS Retains its Military Capabilities [in Syria] Despite Loss of Territory” and “Iran Strikes ISIS in Syria.” That report is here.

The bureaucracy’s indifference to the President’s objections is remarkable. Philosophers of language (following J.L. Austin) speak of “performative utterances,” meaning speech that not only describes but transforms the reality under discussion. When a judge or clergyman declares “I now pronounce you man and wife,” for example, that statement actually effects a change in the status of the couple to whom it is addressed.

Likewise, one might have expected the strictures on publication uttered by the President — who is the chief executive and commander-in-chief of the armed forces and who was speaking in an official capacity before his own subordinates — to have this sort of performative quality and to alter agency conduct in the way he prescribed.

But that is not what happened. The President’s remarks were not connected to any policy apparatus that might have put them into effect. And so they were inconsequential.

There were no less than 30 “national emergencies” in effect as of February 1, according to a tabulation prepared by the Congressional Research Service. An additional 21 national emergencies that are no longer in effect were also identified by CRS.

Under the National Emergencies Act, a declaration of national emergency can be used to activate presidential powers that would otherwise be unavailable. President Trump has suggested that he could declare a national emergency in order to begin construction of a “wall” along the U.S. border with Mexico without congressional authorization.

See Declarations under the National Emergencies Act, Part 1: Declarations Currently in Effect, CRS Legal Sidebar, February 1, 2019; and Declarations under the National Emergencies Act, Part 2: Declarations No Longer in Effect, CRS Legal Sidebar, February 1, 2019.

Together, the two reports replicate (with some variations) a table prepared lately by the Brennan Center for Justice, which has researched national emergency powers.

* * *

Other new and noteworthy publications from the Congressional Research Service include the following.

The Emoluments Clauses of the U.S. Constitution, CRS In Focus, January 30, 2019

Executive Branch Ethics and Financial Conflicts of Interest: Disqualification, CRS Legal Sidebar, January 31, 2019

Fifth-Generation (5G) Telecommunications Technologies: Issues for Congress, January 30, 2019

Selecting the World Bank President, updated January 23, 2019

Venezuela: Overview of U.S. Sanctions, CRS In Focus, updated February 1, 2019

U.S.-European Relations in the 116th Congress, CRS In Focus, February 4, 2019

The U.S. Intelligence Community: Homeland Security Issues in the 116th Congress, CRS Insight, updated February 1, 2019

“Migrant Protection Protocols”: Legal Issues Related to DHS’s Plan to Require Arriving Asylum Seekers to Wait in Mexico, CRS Legal Sidebar, February 1, 2019

Drug Trafficking at the Southwest Border: Homeland Security Issues in the 116th Congress, CRS Insight, updated January 31, 2019

The CIA has around 140 projects involving or related to artificial intelligence, CRS noted (citing a 2017 story in DefenseOne). See Artificial Intelligence and National Security, updated January 30, 2019

U.S. Withdrawal from the INF Treaty, CRS Insight, updated February 1, 2019

Evaluating Possible U.S. Troop Withdrawals from Hostile Areas, CRS Insight, February 1, 2019

The new National Intelligence Strategy released last week by DNI Dan Coats affirms transparency as a value and as a strategic priority for U.S. intelligence.

The declared purpose of intelligence transparency is to raise public esteem for intelligence and to engender public trust. But because the policy is framed primarily as a public relations effort, the resulting transparency is limited unnecessarily.

“Through transparency we will strengthen America’s faith that the Intelligence Community seeks the truth, and speaks the truth,” DNI Coats said.

“This will be our hallmark, and I cannot stress this enough — this is not a limitation on us. This will make us stronger. It earns trust. It builds faith, and boosts our credibility around the world for our mission. It is the right thing to do,” he said on January 22.

The latest iteration of intelligence transparency was strongly shaped by the immediate post-Snowden environment, and it began, under then-DNI James Clapper, as an effort to restore public confidence which had been shaken by his disclosures. The legitimacy and legality of U.S. intelligence surveillance activities had been called into question, and the scope of domestic intelligence collection was revealed to a surprising new extent. In response, the intelligence transparency initiative therefore emphasized disclosure of IC legal authorities, oversight mechanisms, and the nature of IC electronic surveillance programs.

(Similar transparency has not extended to covert action, overhead reconnaissance, procurement, contracting, or numerous other areas. Declassification has been highlighted but has been preferentially focused on topics that are historically and substantively remote, such as the 1968 Tet Offensive.)

Has such transparency actually led to increased public trust in intelligence?

Data on the subject are sparse. It seems likely that most members of the public neither trust nor distrust intelligence agencies, being more concerned with other matters. However, increased transparency concerning surveillance practices has helped to focus current debate on real issues and pending policy questions rather than on more speculative topics.  There is a qualitative difference between the precision of the public debate over Section 215 surveillance authority and the foggy controversy over the reputed “Echelon” surveillance program of the 1990s.

Public trust may be conditional on some degree of transparency, and undue secrecy may engender suspicion. But it is doubtful that transparency by itself would generate increased trust. It might just as easily lead to heightened opposition.

Public trust is more likely to be produced as a byproduct of agency competence and integrity. Intelligence community leaders gained credibility and respect this week by publicly differing with the White House on North Korean denuclearization (assessed as “unlikely” to be completed), Iran’s nuclear weapons program (which is “not currently undertaking” steps needed to produce a nuclear device), among other divergent views expressed at the annual threat hearing held by the Senate Intelligence Committee. (The differences elicited an angry outburst from the President.)

In any case, building public trust is not the only possible rationale for intelligence transparency. Increasing public literacy in national security matters and enriching public debate offer an alternative, and more comprehensive, goal for future intelligence transparency efforts.

At a time when even basic factual matters are in dispute, the intelligence community could perform a public service — something analogous to what the Congressional Research Service does on a different plane — by routinely adding substantive information and analysis to the public domain. CIA and other agencies are sitting on a wealth of unclassified, open source material (which is sometimes utilized by CRS itself) that could easily be shared with the public at marginal cost.

It is possible that some unclassified, open source materials might be deemed sensitive and would therefore be withheld, either because their disclosure would reveal a specific target of intelligence collection or because they provide the US government with “decision advantage” of some kind.

But even allowing for such withholding, a vast array of existing unclassified open source intelligence analysis should be releasable. A grab bag of open source intelligence products that were obtained through unauthorized disclosures a decade ago illustrates the kind of materials that could be released on a near-daily basis.

“Whenever possible, we will share with the public the insight we offer to policymakers,” DNI Coats said last week. For now, there remains a great deal of useful but undisclosed intelligence material that should be possible to share with the public.

Noteworthy new publications from the Congressional Research Service include the following.

Bribery, Kickbacks, and Self-Dealing: An Overview of Honest Services Fraud and Issues for Congress, January 30, 2019

China’s Retaliatory Tariffs on U.S. Agricultural Products, CRS In Focus, January 29, 2019

New Law Requires Agencies to Report on Outstanding IG Recommendations, CRS Insight, January 30, 2019

Potential Implications of U.S. Withdrawal from the Paris Agreement on Climate Change, CRS In Focus, updated January 25, 2019

The Trump Administration’s National Strategy for Counterterrorism: Overview and Comparison to the Prior Administration, CRS Insight, January 29, 2019

A Possible Second U.S.-North Korea Summit: What Diplomacy Has and Hasn’t Achieved, CRS Insight, January 23, 2019

The U.S. Army and Multi-Domain Operations, CRS Insight, January 17, 2019

Redirecting Army Corps of Engineers Civil Works Resources During National Emergencies, CRS In Focus, January 28, 2019

The Historical Review Panel that advises the Central Intelligence Agency on declassification of historical intelligence records said this week that its planned December 2018 meeting was canceled by CIA, and that no future meetings were scheduled.

But CIA said yesterday that the Panel would be reconvened following some administrative changes.

“We have recently been informed that the Panel is being restructured and will not meet again until this has been done,” said the Panel of independent historians, chaired by Prof. Robert Jervis of Columbia University, in a January 14 statement published on H-DIPLO. “The reasons for this remain unclear to us, and no schedule for resumed meetings has been announced.”

Upon further investigation, it appears that changes may be made regarding composition of Panel membership, term limits, and similar issues but that the scope of the Panel’s activities will be unaffected. The reconstituted Panel is expected to meet again sometime this year.

“The CIA is committed to the public release of historical information, and the Historical Review Panel remains an important and valuable resource for this endeavor,” said CIA spokesperson Sara Lichterman.

The Panel is purely advisory and does not make or execute policy. But it serves to represent the concerns of historians regarding declassification of intelligence records. It has helped to prioritize records of particular interest for declassification and to facilitate production of intelligence records for the Foreign Relations of the United States series. And perhaps most important, through its periodic meetings with the CIA Director, it has helped to elevate historians’ concerns about intelligence declassification within the Agency.