The United States has imposed sanctions on Russia in recent years “for aggression against Ukraine, election interference, malicious cyber activity, human rights violations, weapons proliferation,” and other causes. The range of sanctions was surveyed in a new Congressional Research Service publication.

The sanctions include “blocking U.S.-based assets; prohibiting U.S. persons from engaging in transactions related to those assets; prohibiting certain, and in some cases all, U.S. transactions; and denying entry into the United States,” as well as various export control restrictions. See Overview of U.S. Sanctions Regimes on Russia, CRS In Focus, July 26, 2018.

The impact of the punitive sanctions on Russia policy is uncertain. There is no indication that US sanctions were discussed at the recent Helsinki meeting between Trump and Putin, CRS said.

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

NAFTA Renegotiation and Modernization, updated July 26, 2018

Momentum Toward Peace Talks in Afghanistan?, CRS Insight, July 24, 2018

The European Union and China, CRS In Focus, July 26, 2018

Australia and New Zealand React to China’s Growing Influence in the South Pacific, CRS Insight, July 26, 2018

Zimbabwe: Forthcoming Elections, CRS In Focus, July 26, 2018

Federal Prize Competitions, July 25, 2018

What Happens If the National Flood Insurance Program (NFIP) Lapses?, CRS Insight, July 24, 2018

History of Use of U.S. Military Bases to House Immigrants and Refugees, CRS Insight, July 26, 2018

The Essential Judge Brett M. Kavanaugh Reader: What Cases Should You Read?, CRS Legal Sidebar, July 25, 2018

The use of percussion instruments in military bands is exhaustively explored in a new publication from the U.S. Army.

“While a civilian percussionist may specialize on one particular percussion instrument, the Army requires a percussionist to be responsible for over 50 percussion instruments” including bongos and cowbells.

A percussion instrument is a musical instrument that produces sound when it is struck or shaken.

See Percussion Techniques, Training Circular TC 1-19.30, Department of the Army, July 25, 2018.

“Percussion in military bands derives from the European tradition, with the British having greatest influence,” the Army document notes. “The drum was used as a signaling device from the inception of the American colonies through the Civil War, where it gave way to the bugle. Wind bands prospered during the Civil War, and the wind band was the most accessible means of presenting music to the masses for bolstering morale and esprit de corps. Modern military bands provide music for troop ceremonies, formal military occasions and patriotic gatherings. Bands also provide music for recruiting and community-relations events.”

“Percussion is an important part of the military music structure and composition.”

Rebuking the Trump Administration for its “passivity,” Congress is pressing the Department of Defense to engage in “active defense” in cyberspace against Russia, China, North Korea and Iran.

A new provision in the conference report on the FY2019 national defense authorization act (sect. 1642) would “authorize the National Command Authority to direct the Commander, U.S. Cyber Command, to take appropriate and proportional action through cyberspace to disrupt, defeat, and deter systematic and ongoing attacks by the Russian Federation in cyberspace.” It would further “add authorizations for action against the People’s Republic of China, the Democratic People’s Republic of Korea, and the Islamic Republic of Iran.”

“The conferees have been disappointed with the past responses of the executive branch to adversary cyberattacks and urge the President to respond to the continuous aggression that we see, for example, in Russia’s information operations against the United States and European allies in an attempt to undermine democracy.”

“The administration’s passivity in combating this campaign. . . will encourage rather than dissuade additional aggression.”

“The conferees strongly encourage the President to defend the American people and institutions of government from foreign intervention,” the report language said.

The congressional report does not propose an actual cyber strategy, nor does it specify desired outcomes, or address unintended consequences.

Another provision in the new conference report says that the Department of Defense ought to be just as assertive and “aggressive” in cyberspace as it is elsewhere (sect. 1632).

“The conferees see no logical, legal, or practical reason for allowing extensive clandestine traditional military activities in all other operational domains (air, sea, ground, and space) but not in cyberspace,” the report said.

“It is unfortunate that the executive branch has squandered years in interagency deliberations that failed to recognize this basic fact and that this legislative action has proven necessary.”

“The conferees agree that the Department should conduct aggressive information operations to deter adversaries.”

Curiously, the report found it necessary to add that “the conferees do not intend this affirmation as an authorization of clandestine activities against the American people.”

In general, another provision (sect. 1636) states, the U.S. needs to be ready for war in cyberspace:

“It shall be the policy of the United States, with respect to matters pertaining to cyberspace, cybersecurity, and cyber warfare, the United States should employ all instruments of national power, including the use of offensive cyber capabilities, to deter if possible, and respond to when necessary, all cyber attacks or other malicious cyber activities of foreign powers that target United States interests with the intent to… cause casualties among United States persons or persons of United States allies; significantly disrupt the normal functioning of United States democratic society or government (including attacks against critical infrastructure that could damage systems used to provide key services to the public or government); threaten the command and control of the Armed Forces, the freedom of maneuver of the Armed Forces, or the industrial base or other infrastructure on which the United States Armed Forces rely to defend United States interests and commitments; or achieve an effect, whether individually or in aggregate, comparable to an armed attack or imperil a vital interest of the United States.”

Earlier this year, the Department of Defense classified the schedule of flight tests of ballistic missile defense systems, even though such information had previously been unclassified and publicly disclosed.

Rejecting that move, Congress has now told the Pentagon’s Missile Defense Agency that the flight test schedule must be unclassified.

A new provision in the FY2019 national defense authorization act (sect. 1681) would “require that MDA make the quarter and fiscal year for execution of planned flight tests unclassified.”

“Together with the release of each integrated master test plan of the Missile Defense Agency, and at the same time as each budget of the President is submitted to Congress…, the Director of the Missile Defense Agency shall make publicly available a version of each such plan that identifies the fiscal year and the fiscal quarter in which events under the plan will occur,” the provision states.

This legislative action will effectively override the classification judgment of the executive branch. That is something that Congress rarely does and that the executive branch regards as an infringement on its authority.

The so-called “black” budget — which refers to classified government spending on military procurement, operations, and intelligence — is not merely secret. It is actually deceptive and misleading, since it produces a distortion in the amount and the presentation of the published budget.

The amount of money that is purportedly appropriated for the US Air Force, for example, does not all go to the Air Force, the Senate Armed Services Committee recently observed.

“Each year, a significant portion of the Air Force budget contains funds that are passed on to, and managed by, other organizations within the Department of Defense. This portion of the budget, called ‘pass-through,’ cannot be altered or managed by the Air Force. It resides within the Air Force budget for the purposes of the President’s budget request and apportionment, but is then transferred out of the Service’s control,” according to a Senate report on the 2019 defense bill (S.Rept. 115-262).

Although the report does not say so, the Air Force budget may also include pass-through funding for the Central Intelligence Agency, which of course is not even part of the Department of Defense, as well as for other non-Air Force intelligence functions.

“In fiscal year 2018, the Air Force pass-through budget amounted to approximately $22.0 billion, or just less than half of the total Air Force procurement budget. The committee believes that the current Air Force pass-through budgeting process provides a misleading picture of the Air Force’s actual investment budget.”

The Senate therefore recommended that such “pass-through” funds be removed from the Air Force budget and included in Defense-wide appropriations.

But in the House-Senate conference on the FY2019 defense bill, this move was blocked and so the deceptive status quo will continue to prevail.

Earlier this month, the Director of National Intelligence and the Pentagon Comptroller wrote to Congress to present their views on the Senate provision. A copy of their letter, which presumably objected to the proposed move, has been requested but not yet released.

The logic of the Senate proposal was explained by Mackenzie Eaglen of the American Enterprise Institute in “Time to Get the Black Out of the Blue,” Real Clear Defense, June 13.

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

Resurgence of Chemical Weapons Use: Issues for Congress, CRS Insight, July 24, 2018

Mutual Legal Assistance Treaty with the Russian Federation: A Sketch, CRS Legal Sidebar, July 24, 2018

FY2019 Defense Appropriations Bill: An Overview of House-passed H.R. 6157, CRS In Focus, July 19, 2018

The Trump Administration’s “Zero Tolerance” Immigration Enforcement Policy, July 20, 2018

Judicial Opinions of Judge Brett M. Kavanaugh, July 23, 2018

Revoking security clearances for access to classified information in order to punish critics, as the White House proposed to do yesterday, is probably within the President’s authority. But it shouldn’t be. And there is, in principle, a way to prevent it.

“Not only is the President looking to take away [former CIA director John] Brennan’s security clearance, he’s also looking into the clearances of Comey, Clapper, Hayden, Rice, and McCabe,” said White House press secretary Sarah Sanders. “The President is exploring the mechanisms to remove security clearance because they’ve politicized and, in some cases, monetized their public service and security clearances.” (Comey and McCabe, it turns out, no longer hold security clearances.)

“Making baseless accusations of improper contact with Russia or being influenced by Russia against the President is extremely inappropriate,” she said. “And the fact that people with security clearances are making these baseless charges provides inappropriate legitimacy to accusations with zero evidence.”

In fact, making baseless accusations (let alone well-founded accusations) is not normally grounds for denial or revocation of a security clearance.

But in the wake of a 1988 Supreme Court case known as Navy v. Egan, it is often presumed that the President can grant, deny or revoke a security clearance for any reason or for no reason at all.

Yet that is not exactly correct, as Louis Fisher explained in a 2009 paper for the Law Library of Congress.

While the Court in Egan affirmed deference to the executive branch in matters of national security, even there such deference was not absolute and it was explicitly constrained by the possibility of legislative action (“unless Congress specifically has provided otherwise”).

“Nothing in Egan recognizes a plenary or exclusive power on the part of the President over classified information,” Fisher concluded. See Judicial Interpretations of Egan by Louis Fisher, The Law Library of Congress, November 13, 2009.

It follows that if Congress disapproved of the use of the security clearance system to regulate or suppress critical commentary, then it — or perhaps a new Congress — could effectively prohibit such use.

New and updated reports from the Congressional Research Service include the following.

Flying Cars and Drones Pose Policy Challenges for Managing and Regulating Low-Altitude Airspace, CRS Insight, July 23, 2018

“Duck Boat” Accident Highlights Gap in Regulation, CRS Insight, July 20, 2018

Emergency Department Boarding of Behavioral Health Patients, CRS In Focus, July 19, 2018

Transnational Crime Issues: Human Trafficking, CRS In Focus, July 19, 2018

The U.S. Trade Deficit: An Overview, CRS In Focus, July 18, 2018

U.S.-EU Trade and Economic Issues, CRS In Focus, July 20, 2018

U.S.-EU Trade and Investment Ties: Magnitude and Scope, CRS In Focus, July 20, 2018

Mexico: Evolution of the Mérida Initiative, 2007-2019, CRS In Focus, July 23, 2018

Iran Nuclear Agreement and U.S. Exit, updated July 20, 2018

Does the President have the authority to unilaterally amend the Code of Federal Regulations by executive order?

The question arises because executive order 13843 issued by President Trump on July 10 to modify the way administrative law judges are appointed also purports to directly amend three provisions of the CFR.

Ordinarily, such regulations can only be amended by a formal rulemaking procedure involving public notice and an opportunity for public comment. That was not done here.

So a new publication from the Congressional Research Service inquires into the scope of presidential authority to amend federal regulations.

The tentative CRS conclusion is that while an executive order may itself be exempt from the regular rulemaking procedures, any agency implementation of the president’s executive order that involves changes to federal regulations would still have to follow those notice and comment procedures. See Can a President Amend Regulations by Executive Order?, CRS Legal Sidebar, July 18, 2018.

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Federal agencies disburse more than $100 billion each year in “improper payments” — meaning payments that should not have been made, payments for goods or services that were not received, payments in the wrong amount, duplicate payments, and so on. Efforts to reduce such unjustified expenditures have not been successful. A new report from the Congressional Research Service reviews the trends, and finds that “Over the period of FY2004 through FY2017… improper payments have totaled $1.3 trillion.” See Improper Payments in High-Priority Programs: In Brief, July 16, 2018.

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Other notable new or updated reports from the Congressional Research Service include the following.

Public Disclosure of Corporate Tax Returns, CRS Insight, July 16, 2018 (“Granting access to corporate tax returns could help to educate the public and inform policymakers by showing what corporations pay in taxes and which tax incentives they benefit from.”)

Brett M. Kavanaugh: Selected Primary Material, CRS Legal Sidebar, July 17, 2018

The Proposed Equal Rights Amendment: Contemporary Ratification Issues, updated July 18, 2018

The Black Lung Program, the Black Lung Disability Trust Fund, and the Excise Tax on Coal: Background and Policy Options, July 18, 2018

Military Commission Judges Do Not Have Unilateral Power to Punish for Contempt, CRS Legal Sidebar, July 18, 2018

The Budget Control Act and the Defense Budget: Frequently Asked Questions, updated July 13, 2018

Cybersecurity: Data, Statistics, and Glossaries, updated July 16, 2018

The U.S. Trade Deficit: An Overview, CRS In Focus, July 18, 2018

Mexico’s 2018 Elections: Results and Potential Implications, CRS In Focus, July 17, 2018

China’s Actions in South and East China Seas: Implications for U.S. Interests–Background and Issues for Congress, updated July 17, 2018

U.S. Army’s Initial Maneuver, Short-Range Air Defense (IM-SHORAD) System, CRS Insight, July 18, 2018

Military cyber operations have been normalized to the point that there is now a defined career path for would-be cyber warriors in the U.S. Air Force and a formal curriculum for training them.

The role of a cyber war specialist, which includes defense as well as offense, is “to develop, sustain, and enhance cyberspace capabilities to defend national interests from attack and to create effects in cyberspace to achieve national objectives,” according to a new Air Force training plan that was published this week.

The Air Force training plan outlines the anticipated career progression of its cyber warriors, and describes the tasks that they must master. See Cyber Warfare Operations Career Field Education and Training Plan, CFETP 1B4X1, July 15, 2018.

Offensively, trainees must learn methods such as buffer overflow tactics and techniques, privilege escalation, rootkits, redirection and triggering, tunneling, and so forth. Defensive methods include encryption, secure enclaves, boundary protection, intrusion detection, etc.

A select group of especially competent trainees will be selected “to futher develop their skills in the areas of secure system design, vulnerability analysis, computer network defense (CND), and computer network exploitation (CNE)” in joint programs with the National Security Agency and US Cyber Command.

The programs will enhance students’ technical skills and will help to “bridge gaps between typical Computer Science/Engineering curriculum and those necessary for Computer Network Attack / Exploitation / Defense.”

“Each intern must complete at least one offensive and at least one defensive tour during the program,” the training plan said.

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Some other noteworthy new military doctrinal and other publications include the following.

Human Remains Associated with Sunken Military Craft, SecNav Instruction 5360.2, July 11, 2018. Navy policy normally precludes efforts to recover the remains of those lost at sea. “The Department of the Navy (DON) has long recognized the sea as a fit and final resting place for personnel who perish at sea.”

The guided missile destroyer USS John S. McCain is now named for Senator McCain as well as for his father and grandfather. “As a prisoner of war, [Sen.] McCain represented our nation with dignity and returned with honor,” wrote Secretary of the Navy Richard V. Spencer in a July 12 memorandum memorializing the designation.

The production of electric power for military operations is addressed in a new Army manual. “Modern warfare relies on electrically powered systems, making electricity an essential element that supports warfighting functions.” Though nuclear power systems have previously played a role in the Army, there is no mention of nuclear reactors or isotope power in the new publication. See ATP 3-34.45, Electric Power Generation and Distribution, July 6, 2018.

In its new report on the FY 18-19 Intelligence Authorization bill, published today, the Senate Select Committee on Intelligence would require the Director of National Intelligence “to develop a whole-of-government strategy for countering Russian cyber threats against United States electoral systems and processes.”

As if to underscore the gulf in the perception of the Russian threat that separates President Trump and the US intelligence community, the Senate Intelligence Committee comes down firmly on the side of the latter, taking “Russian efforts to interfere with the 2016 United States presidential election” as a given and an established fact.

The Senate report describes numerous other provisions of interest on election security, classification policy, cybersecurity, and more.

The House Intelligence Committee published its report on the pending FY18-19 intelligence authorization bill earlier this month.

New and updated reports from the Congressional Research Service include the following.

Tit-for-Tat Tariff Measures and U.S. Trade Policy, CRS Insight, July 11, 2018

Renewable Energy and Energy Efficiency Incentives: A Summary of Federal Programs, updated July 11, 2018

Military Transition Assistance Program (TAP): An Overview, CRS In Focus, updated July 12, 2018

Risk and Needs Assessment in the Federal Prison System, updated July 10, 2018

Senate Judiciary Committee Hearings for a Supreme Court Nominee: Overview, CRS Insight, July 12, 2018

Justice Anthony Kennedy: His Jurisprudence and the Future of the Court, July 11, 2018