New and newly updated reports from the Congressional Research Service that Congress has not made readily available to the public include the following (all pdf).

U.S.-China Military Contacts: Issues for Congress, February 10, 2012

China Naval Modernization: Implications for U.S. Navy Capabilities — Background and Issues for Congress, February 8, 2012

Military Base Closure: Socioeconomic Impacts, February 7, 2012

Intelligence Authorization Legislation: Status and Challenges, February 13, 2012

Trans-Pacific Partnership (TPP) Countries: Comparative Trade and Economic Analysis, February 8, 2012

Russian Political, Economic, and Security Issues and U.S. Interests, February 10, 2012

U.S. Sanctions on Burma, February 7, 2012

Afghanistan: Post-Taliban Governance, Security, and U.S. Policy, February 6, 2012

Navy Nuclear Aircraft Carrier (CVN) Homeporting at Mayport: Background and Issues for Congress, February 9, 2012

Navy Ford (CVN-78) Class Aircraft Carrier Program: Background and Issues for Congress, February 9, 2012

Navy DDG-51 and DDG-1000 Destroyer Programs: Background and Issues for Congress, February 3, 2012

Iran Sanctions, February 10, 2012

Internet Governance and the Domain Name System: Issues for Congress, February 9, 2012

Federal Land Ownership: Overview and Data, February 8, 2012

Changes in the Arctic: Background and Issues for Congress, February 7, 2012

After all the speeches about greater openness have been delivered and the news releases about secrecy reform have been filed away, one may ask:  What has actually been accomplished?  How much improper secrecy has been eliminated?  Specific answers to such questions may soon be forthcoming.

The Information Security Oversight Office (ISOO), which is responsible for oversight of the national security classification system, wants agencies to answer those questions when they submit their final reports on the Fundamental Classification Guidance Review in June 2012.  The Fundamental Review was mandated by President Obama’s 2009 executive order 13526 (section 1.9) in order to identify and cancel classification requirements that were obsolete or unnecessary. The Review process is the Obama Administration’s primary response to the widely acknowledged problem of overclassification.

In a memorandum to senior agency officials last month, ISOO Director John P. Fitzpatrick instructed them on how to report the results of each agency’s Fundamental Review, and asked them to explain what practical difference the Review made.

“To the greatest extent possible, the reports should be informative as to how much information that was classified is no longer classified as a result of the review,” Mr. Fitzpatrick wrote.  “The report should also provide the best estimate of how much information that would normally have been classified in the future will now not become classified,” he continued.

The message here is that the Fundamental Review was not supposed to be some merely perfunctory exercise, but was intended to advance a specific policy objective, namely a reduction in the scope of secrecy.

It may succeed, to one degree or another, or it may fail.  In either case, Mr. Fitzpatrick’s reporting requirements should generate useful clarity about the outcome.  See “Reporting Results of Fundamental Classification Guidance Reviews to ISOO,” memorandum to selected senior agency officials, January 23, 2012.

In a January 31 interim status report on the Fundamental Review, the Department of Homeland Security said it had eliminated 2 classification guides out of 22 guides that had been reviewed to date.  The Nuclear Regulatory Commission said it had also retired two guides.

The Department of Defense currently seeks expanded access to U.S. airspace for its unmanned aerial systems (UASs), and it anticipates the routine use of military UAS in the National Airspace System (NAS) as a long-term goal, according to a 25 year roadmap for UAS development.

“The number of UAS in the DoD inventory is growing rapidly.  The increase in numbers, as well as the expanding roles of UAS, has created a strong demand for access to national and international airspace and has quickly exceeded the current airspace available for military operations,” according to DoD’s Unmanned Systems Integrated Roadmap, FY2011-2036, dated October 2011.

“The [desired] end state is routine NAS access comparable to manned aircraft for all DoD UAS,” the DoD Roadmap said.  “DoD’s immediate focus is gaining near-term mission-critical access while simultaneously working toward far-term routine NAS access.”

“Current UAS are built to different specifications for different purposes; therefore, showing individually that each system is safe for flight in the NAS can be complicated, time consuming, and costly,” the Roadmap stated.  “Routine access cannot happen until DoD and FAA agree to an acceptable level of safety for UAS, and the appropriate standards are developed to meet that threshold.”

Under current procedures, the Federal Aviation Administration permits a small number of DoD UAS flights outside of restricted military areas.  But the present FAA certification process “does not provide the level of airspace access necessary to accomplish the wide range of DoD UAS missions at current and projected operational tempos.  This constraint will only be exacerbated as combat operations in Southwest Asia wind down and systems are returned to U.S. locations.”

In the newly enacted FAA authorization act and the 2012 National Defense Authorization Act, Congress mandated “accelerated” integration of UASs into U.S. airspace.  (“Congress Calls for Accelerated Use of Drones in U.S.,” Secrecy News, February 3;  “Drones Over U.S. Get OK by Congress” by Shaun Waterman, Washington Times, February 7;  “Among Liberties Advocates, Outrage Over Expanded Use of Drones” by Channing Joseph, New York Times The Lede, February 7.)

“Over the next 15 years more than 23,000 UAS jobs could be created in the U.S. as the result of UAS integration into the NAS,” according to a 2010 report by the Association for Unmanned Vehicle Systems International, a UAS industry advocacy group. “These new jobs will include positions in industry, academia, federal government agencies and the civilian/commercial UAS end-user community.”

 

In recent years the Mandatory Declassification Review (MDR) process has become an increasingly useful alternative to the Freedom of Information Act by which members of the public can challenge the classification of government records.  Remarkably, agency classification positions have been overturned with some frequency in the MDR appeals process, which is something that almost never happens in FOIA litigation.

In a dubious act of recognition of the growing effectiveness of MDR, the Central Intelligence Agency has recently imposed substantial new fees that seem calculated to discourage its use by public requesters.

Last September the CIA issued new regulations specifying that declassification reviews would now cost up to $72 per hour even if no responsive records were found or released.  There is also a minimum fee of $15 for reproduction of any document, no matter how few pages it might consist of.

“Search fees are assessable even if we find no records, or, if we find any, we determine that we cannot release them,” the CIA wrote last month in response to an MDR request from the National Security Archive.  “Consequently, we will charge you even if our search results are negative or if we cannot release any information.  Accordingly, we will need your commitment to pay applicable fees before we can proceed.”

For background and a critique of the new CIA policy, see “The CIA’s Covert Operation Against Declassification Review” by Nate Jones in the Archive’s Unredacted blog, February 10.

In a move that can only strengthen and improve oversight of the national security classification system, the Department of Defense Inspector General has begun a far-reaching review of Pentagon classification policy.

Among other things, the Inspector General review will focus on “efforts by the Department to decrease over-classification.”

In response to the “Reducing Over-classification Act” enacted by Congress in 2010, the IG will “evaluate the policies, procedures, rules, regulations, or management practices that may be contributing to persistent misclassification of material.”  The Act was originally sponsored by Rep. Jane Harman and Sen. Joe Lieberman.

The IG notified the military service secretaries and DoD agency heads of its new classification oversight project in an October 26, 2011 memorandum obtained by Secrecy News.

For years, critics of secrecy policy including the Federation of American Scientists have called for a greater role for inspectors general in classification oversight, to augment the work of the Information Security Oversight Office.  IGs typically offer several advantages:  Since they are part of the executive branch, their involvement in classification policy does not raise thorny separation of powers issues.  Moreover, as resident agency employees, IG investigators are already in place, they already hold all needed security clearances, and they should already be familiar with their agencies’ programs and policies.

Best of all, they are poised to identify defective practices when they discover them.

The FAS Project on Government Secrecy commenced two decades ago with a complaint we submitted to the DoD Inspector General regarding the classification of the Timber Wind nuclear rocket program as an “unacknowledged special access program.”  In its December 16, 1992 response, the IG determined that “the decision to protect the program using special program measures was not adequately justified.”  The IG further found that certain program information was safeguarded “for reasons that were not related to national security.” The Timber Wind program did not survive.

A new book-length study of leaks of classified information published by the Defense Intelligence Agency’s National Intelligence University contends that “the tension between maintaining national security secrets and the public’s right to know cannot be ‘solved’, but can be better understood and more intelligently managed.”

“Who Watches the Watchmen?” by Gary Ross explores the phenomenon of leaks from multiple angles, including their history, their prevalence and their consequences.  Most interestingly, he considers the diverse motivations of leakers and of the reporters who solicit, receive and publish their disclosures.  Some of these he finds defensible, and others not.

In the end, he advises that government officials should engage members of the media in a constructive dialog in order to avert the worst consequences of leaks.

“Proactively engaging with the media to examine the costs and benefits associated with unauthorized disclosures represents the greatest potential for reducing the perceived harm to national security,” Mr. Ross writes.

By contrast, “Maintaining the status quo or attempting to legislate a solution both have proven to be ineffective methods for resolving the dilemma. True change can only occur if the Executive Branch is willing to invest the time and resources necessary to implement an approach focused on engagement with the media.”

This is a congenial conclusion, which implies that punitive new legislation can be avoided and that remaining differences between reporters and government officials can be fruitfully discussed.

But it arguably misapprehends the harsh new policy landscape in the wake of the WikiLeaks episode (which is also discussed in the book).  The status quo has been transformed in response to WikiLeaks in two ways that are unfavorable to leakers, justified or unjustified.

First, the threat of unauthorized disclosures has been elevated in the view of government officials to one of “the most menacing foreign intelligence threats in the next two to three years.”  In January 31 testimony to the Senate Intelligence Committee, DNI James R. Clapper said that unauthorized disclosures of classified information had “caused significant damage to US interests.” Further, he said, “We assess that trusted insiders using their access for malicious intent represent one of today’s primary threats to US classified networks.”  “Engagement with the media” will not be the main response to such threats.

And second, WikiLeaks, which targeted legitimate and illegitimate secrets with equal vigor, has inspired and accelerated the development of new forensic tools and methods to identify the sources of unauthorized disclosures.  Internal surveillance of classified networks is set to grow, with new mechanisms for tracking and auditing online activity by government employees.  Whatever else might be true, the status quo of a few years ago has been left behind.

New reports from the Congressional Research Service that have not been made readily available to the public include the following (all pdf).

China’s Vice President Xi Jinping Visits the United States: What Is at Stake?, February 6, 2012

Lebanon and the Uprising in Syria: Issue for Congress, February 2, 2012

Iran’s Threat to the Strait of Hormuz, January 23, 2012

Sourcing Policy: Selected Developments and Issues, February 7, 2012

Smart Meter Data: Privacy and Cybersecurity, February 3, 2012

Suicide Prevention Efforts of the Veterans Health Administration, February 3, 2012

Constitutional Analysis of Suspicionless Drug Testing Requirements for the Receipt of Governmental Benefits, January 19, 2012

When Congress passed the 2012 National Defense Authorization Act, it included provisions that authorized U.S. armed forces to detain persons who are captured in the conflict with al-Qaeda, the Taliban, or associated forces. However, Congress also said that those provisions did not provide any new authority to detain U.S. citizens or others who may be captured in the United States.

“Nothing in this section shall be construed to affect existing law or authority relating to the detention of United States citizens…,” section 1021(e) of the Act states.  “We are simply codifying existing law,” said Sen. Carl Levin, chair of the Senate Armed Services Committee, at the time.

But this was an evasion, since existing law regarding the detention of U.S. persons is indeterminate in important respects.

A new report from the Congressional Research Service fleshes out the law of detention, identifying what is known to be true as well as what is unsettled and unresolved.

It is perfectly clear, for example, that a U.S. citizen who fought alongside enemy forces against the United States on a foreign battlefield could be lawfully detained.  This was affirmed by the U.S. Supreme Court in the case Hamdi v. Rumsfeld.

On the other hand, the CRS report explains, “the President’s legal authority to militarily detain terrorist suspects apprehended in the United States has not been definitively settled.”

Nor has Congress helped to settle it.  “This bill does not endorse either side’s interpretation,” said Sen. Dianne Feinstein on December 1 about the defense authorization act, “but leaves it to the courts to decide.”

So if a detention of a U.S. person does occur, the CRS said, “it will be up to a court to determine Congress’s intent when it enacted the AUMF [the 2001 Authorization to Use Military Force], or alternatively, to decide whether the law as it was subsequently developed by the courts and executive branch sufficiently established that authority for such detention already exists.”

Up to now, “Lower courts that have addressed questions the Supreme Court left unanswered have not achieved a consensus on the extent to which Congress has authorized the detention without trial of U.S. persons as ‘enemy combatants,’ and Congress has not so far clarified its intent.”

The new CRS report traces the development of U.S. detention policy from the Alien and Sedition Acts of 1798 through the Civil War, the two World Wars, and the Cold War up to the present day. See Detention of U.S. Persons as Enemy Belligerents by CRS legislative attorney Jennifer K. Elsea, February 1, 2012.

Some other new (or newly updated) CRS reports obtained by Secrecy News that have not been made readily available to the public include the following.

Terrorist Watch List Screening and Brady Background Checks for Firearms, February 1, 2012

War Powers Resolution: Presidential Compliance, February 1, 2012

The U.S. Postal Service’s Financial Condition: Overview and Issues for Congress, January 27, 2012

The Military Intelligence Professional Bulletin is a quarterly journal published by the U.S. Army to promote awareness and discussion of current topics in military intelligence.  Although unclassified, the Bulletin is not made available online by the Army.  Recent volumes can be found, however, on the Federation of American Scientists website.

The two latest issues are devoted to Intelligence in the Current Environment (April-June 2011) and Enabling Intelligence Analysis (July-September 2011).

Secretary of Defense Leon Panetta and other officials have warned that if U.S. military spending is cut significantly, the unacceptable result would be a “a hollow force incapable of sustaining the missions it is assigned.”

But a new critique from the Congressional Research Service suggests that the use of the term “hollow force” is inappropriate and unwarranted.

“Historically, there were two periods– post-Vietnam and again in the 1990s– when the term ‘hollow force’ was used to describe the U.S. armed forces.”  It referred to “forces that appear mission-ready but, upon examination, suffer from shortages of personnel and equipment, and from deficiencies in training.”

But a close review of the circumstances that generated a hollow force in the past does not support the use of the term today, the CRS said.  “Most of the conditions that existed in the 1970s do not exist today.”

Among other things, defense procurement spending has surged in recent years to enable significant modernization of military forces.

“Even if modernization funds become more limited in future defense budgets, overall budget data suggest the Services would enter this period after having invested in modernized forces about as substantially as in the weapons-driven buildup of the 1980s.”

“CRS has calculated that when recent amounts for weapons modernization are compared to amounts in the mid-1980s, the total inflation-adjusted dollar value of relatively modern equipment available to forces today (i.e., equipment purchased within the past 10 years) appears relatively robust.”

“Given these conditions, it can be argued that the use of the term ‘hollow force’ is inappropriate under present circumstances,” the CRS report said.

A copy of the new CRS report was obtained by Secrecy News.  See A Historical Perspective on “Hollow Forces,” January 31, 2012.

Updated below

A House-Senate conference report this week called on the Administration to accelerate the use of civilian unmanned aerial systems (UAS), or “drones,” in U.S. airspace.

The pending authorization bill for the Federal Aviation Administration directs the Secretary of Transporation to develop within nine months “a comprehensive plan to safely accelerate the integration of civil unmanned aircraft systems into the national airspace system.”

“The plan… shall provide for the safe integration of civil unmanned aircraft systems into the national airspace system as soon as practicable, but not later than September 30, 2015.”

The conference bill, which still awaits final passage, also calls for establishment of UAS test ranges in cooperation with NASA and the Department of Defense, expanded use of UAS in the Arctic region, development of guidance for the operation of public unmanned aircraft systems, and new safety research to assess the risk of “catastrophic failure of the unmanned aircraft that would endanger other aircraft in the national airspace system.”

The Department of Defense is pursuing its own domestic UAS activities for training purposes and “domestic operations,” according to a 2007 DoD-FAA memorandum of agreement.  (“Army Foresees Expanded Use of Drones in U.S. Airspace,” Secrecy News, January 19, 2012.)

Update: In the recently enacted FY2012 National Defense Authorization Act (section 1097), Congress mandated that “the Administrator of the Federal Aviation Administration shall establish a program to integrate unmanned aircraft systems into the national airspace system at six test ranges.” This new test range program is supposed to be established within 180 days.

As of 2010, hundreds of FAA authorizations had already been granted for use of unmanned aerial systems within U.S. airspace.

Over the past decade, the number of U.S. special operations forces (SOF) personnel has nearly doubled, while budgets for special operations have nearly tripled, and overseas deployments have quadrupled, according to a newly updated report from the Congressional Research Service.

“Special Operations Forces are elite military units with special training and equipment that can infiltrate into hostile territory through land, sea, or air to conduct a variety of operations, many of them classified,” the CRS report explains. “SOF personnel undergo rigorous selection and lengthy specialized training. The U.S. Special Operations Command (USSOCOM) oversees the training, doctrine, and equipping of all U.S. SOF units.”

Following an overview of the structure of U.S. special operations forces, the CRS report discusses the implications for special operations of recent legislation including the 2012 defense authorization act.  See U.S. Special Operations Forces (SOF): Background and Issues for Congress, January 11, 2012.

A copy of the new U.S. Special Operations Command Fact Book 2012, prepared by USSOCOM Public Affairs, is available here.

Other noteworthy new reports from the Congressional Research Service that have not been made readily available to the public include the following:

Arms Sales: Congressional Review Process, February 1, 2012

The Nunn-McCurdy Act: Background, Analysis, and Issues for Congress, January 31, 2012

Immigration-Related Detention: Current Legislative Issues, January 12, 2012