The annual number of drug overdose deaths in the United States involving opioids has more than quadrupled since 1999, a new report from the Congressional Research Service notes.

“CDC estimates that in 2016, more than 63,000 people died from a drug overdose, and more than 42,000 of these deaths involved prescription or illicit opioids.” See The Opioid Epidemic and the Food and Drug Administration: Legal Authorities and Recent Agency Action, June 5, 2018.

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

Increase in Illicit Fentanyl Overdose Deaths, CRS Insight, June 6, 2018

Capital Markets, Securities Offerings, and Related Policy Issues, June 8, 2018

The Rise and Decline of the Alien Tort Statute, CRS Legal Sidebar, June 6, 2018

Intelligence Planning, Programming, Budgeting and Evaluation Process (IPPBE), CRS In Focus, May 30, 2018

Recent Trends in Active-Duty Military Deaths, CRS In Focus, June 1, 2018

Expedited Citizenship through Military Service, CRS In Focus, May 11, 2018

Egypt: Background and U.S. Relations, updated June 7, 2018

Department of State, Foreign Operations and Related Programs: FY2019 Budget and Appropriations, updated June 8, 2018

How to Develop and Write a Grant Proposal, updated June 7, 2018

The National Declassification Center at the National Archives is looking for a director to help implement its declassification agenda.

The National Declassification Center was established by President Obama’s 2009 executive order 13526 “to streamline declassification processes,” and it has had some success in bringing order to an often arbitrary declassification environment. One of the Center’s recent “special projects” involves review of records of the Office of the Secretary of Defense with 1.3 million pages processed and 830 thousand pages declassified.

The U.S. Department of Defense spent $11.3 billion on purchases abroad in 2015, including $1.6 billion worth of goods or services from the United Arab Emirates, according to a newly released DoD report to Congress.

The majority of foreign purchases by DoD were for fuel, services, construction and subsistence. The DoD report breaks down the total that was spent abroad by DoD in each of several dozen foreign countries.

See Purchases from Foreign Entities in FY2015, DoD report to Congress, June 2016 (released under FOIA May 2018).

Update: The June 2017 DoD report on purchases from foreign entities in FY 2016 is here. Reports from prior years can be found here.

DoD reports to Congress are often a significant source of official information and perspective on various aspects of U.S. military policy.

Most recently, DoD produced its required report on Civilian Casualties in Connection With United States Military Operations in 2017, June 1, 2018.

A few months ago, the Pentagon submitted an Interim Report on Organizational and Management Structure for the National Security Space Components of the Department of Defense, March 2018.

A report last year addressed Department of Defense Infrastructure Capacity, October 2017.

Public access to such reports is sporadic and often delayed. A bill pending in the House of Representatives would require the Government Publishing Office to post all such (unclassified) reports online. See Access to Congressionally Mandated Reports Act (HR 4631).

Iran’s central bank has filed a petition with the U.S. Supreme Court seeking to overturn a lower court ruling that would have transferred Iranian funds to the U.S. and made them potentially available for awards to victims of terrorism.

At issue is the legal interpretation of the Foreign Sovereign Immunities Act. A new brief from the Congressional Research Service provides background on the matter. See Iran’s Central Bank Asks Supreme Court to Consider Whether the Bank’s Assets Abroad are Immune from Attachment to Satisfy Terror Judgments by Jennifer K. Elsea, CRS Legal Sidebar, May 30, 2018.

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

Sidewalks, Streets, and Tweets: Is Twitter a Public Forum?, CRS Legal Sidebar, May 30, 2018

(Robo)Call Me Maybe: Robocalls to Wireless Phones Under the Telephone Consumer Protection Act, CRS Legal Sidebar, May 29, 2018

The Role of the Office of National Drug Control Policy (ONDCP), CRS Insight, June 1, 2018

The House Journal: Origin, Purpose, and Approval, May 31, 2018

Federal Grants and Loans for State and Local Emergency Communications Projects: Frequently Asked Questions, June 1, 2018

Federal Aviation Administration (FAA) Reauthorization Issues and Debate in the 115th Congress, May 29, 2018

U.S. Department of State Personnel: Background and Selected Issues for Congress, May 18, 2018

The US is no longer complying with the Iran nuclear deal and is poised to re-impose some previously lifted sanctions on Iran and its trading partners.

But the legal basis for that action is a bit murky and contested. A new analysis from the Congressional Research Service tries to make legal sense of what has happened.

“The legal framework for withdrawal from an international pact depends on, among other features, the type of pact at issue and whether withdrawal is analyzed under domestic law or international law,” the report says. See Withdrawal from the Iran Nuclear Deal: Legal Authorities and Implications, CRS Legal Sidebar, May 17, 2018.

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

Iran’s Foreign and Defense Policies, updated May 23, 2018

Israel: Background and U.S. Relations In Brief, updated May 21, 2018

Bilateral and Regional Trade Agreements: Issues for Congress, May 17, 2018

Covert Action and Clandestine Activities of the Intelligence Community: Framework for Congressional Oversight In Brief, May 15, 2018

Military Construction: Process, Outcomes, and Frequently Asked Questions, updated May 16, 2018

The Federal Budget: Overview and Issues for FY2019 and Beyond, May 22, 2018

Violence Against Journalists in Mexico: In Brief, May 17, 2018

Venezuela’s 2018 Presidential Elections, CRS Insight, May 24, 2018

DACA Rescission: Legal Issues and Litigation Status, CRS Legal Sidebar, May 23, 2018

Coast Guard Polar Icebreaker Modernization: Background and Issues for Congress, updated May 23, 2018

Advanced Pilot Training (T-X) Program: Background and Issues for Congress, updated May 21, 2018

The International Monetary Fund, updated May 24, 2018

Prescription Drug Monitoring Programs, updated May 24, 2018

Vehicle Fuel Economy and Greenhouse Gas Standards: Frequently Asked Questions, May 24, 2018

Is There Liability for Cross-Border Shooting?, CRS Legal Sidebar, May 22, 2018

Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China: Issues for Congress, updated May 24, 2018

Internet Freedom in China: U.S. Government Activity, Private Sector Initiatives, and Issues of Congressional Interest, May 18, 2018

“Pyongyang portrays nuclear weapons as its most effective way to deter the threat from the United States,” the Department of Defense says in a newly disclosed report to Congress on North Korean security policy.

“North Korea’s primary strategic goal is perpetual Kim family rule via the simultaneous development of its economy and nuclear weapons program — a two-pronged policy known as byungjin.” See Military and Security Developments Involving the Democratic People’s Republic of Korea, 2017, Office of the Secretary of Defense, February 2018.

The DoD assessment presents an uncompromisingly hostile North Korea that is committed to nuclear weapons. The report provides no reason to anticipate a reconsideration or a reorientation of the country’s nuclear policies, though that is the entire premise of the upcoming June 12 summit meeting between President Trump and North Korean leader Kim Jong Un.

The report, generated in February 2018, has not been posted online by the Department of Defense. (Update: now posted by DoD.) It was first reported last week by Anthony Capaccio of Bloomberg. See Pentagon Says North Korea’s Regime Has Staked Its Survival on Nuclear Weapons, May 17.

“North Korea ultimately seeks the capability to strike the continental United States with a nuclear-armed ICBM,” the Pentagon report said. “This pursuit supports North Korea’s strategy of deterring the United States as well as weakening U.S. alliances in the region by casting doubt on the U.S.commitment to extended deterrence. In the long term, North Korea may see nuclear weapons as permitting more frequent coercive behavior and may further increase Kim Jong Un’s tolerance for risk.”

The DoD report, required by statute and reflecting developments only through December 15, 2017, is largely consistent with previous DoD reports on the subject. It includes some new material on North Korea’s ballistic missile tests, cyber capabilities, special operations forces, and other topics.

“Lying, or making a false statement, is a federal crime under a number of circumstances,” a newly updated report from the Congressional Research Service instructs.

“It is a federal crime to make a material false statement in a matter within the jurisdiction of a federal agency or department. Perjury is also a federal crime. Perjury is a false statement made under oath before a federal tribunal or official….   Subornation of perjury is inducing someone else to commit perjury. It, too, is a federal crime if the perjury induced is a federal crime. Finally, conspiracy to commit any these underlying crimes is also a separate federal crime.”

See False Statements and Perjury: An Overview of Federal Criminal Law, updated May 11, 2018.

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

Iran Sanctions, updated May 11, 2018

Liberia: Political Transition and U.S. Relations, May 15, 2018

Permanent Legal Immigration to the United States: Policy Overview, updated May 11, 2018

Navy Lasers, Railgun, and Hypervelocity Projectile: Background and Issues for Congress, updated May 10, 2018

Is the U.S. Economy Growing Faster? Can It Grow Faster?, CRS Insight, May 8, 2018

NIH Funding: FY1994-FY2019, updated May 2, 2018

How FDA Approves Drugs and Regulates Their Safety and Effectiveness, updated May 8, 2018

Violence Against Journalists and Media workers in Mexico and U.S. Policy, CRS Memorandum, May 3, 2018

Compelling Presidential Compliance with a Judicial Subpoena, CRS Legal Sidebar, May 4, 2018

A new report from the Congressional Research Service begins to sort through the implications and the practical consequences of the Trump Administration decision to end US compliance with the Iran nuclear agreement, known as the Joint Comprehensive Plan of Action (JCPOA).

“The Trump Administration could have used provisions of the JCPOA itself to cease implementation of U.S. commitments under the agreement. It opted not to do so, but instead to cease implementing the JCPOA by reimposing U.S. sanctions,” the CRS report noted.

See U.S. Decision to Cease Implementing the Iran Nuclear Agreement, May 9, 2018.

For related background from CRS, see also Iran: U.S. Economic Sanctions and the Authority to Lift Restrictions, updated May 10, 2018; Withdrawal from International Agreements: Legal Framework, the Paris Agreement, and the Iran Nuclear Agreement, updated May 4, 2018; and Iran Nuclear Agreement, updated May 2, 2018.

The decision to unilaterally reimpose sanctions on Iran took the form of a National Security Presidential Memorandum (NSPM) on May 8. Although the NSPM posted on the White House website is unnumbered, the copy circulated to reporters was identified as NSPM-11.

It follows that the previous NSPM on conventional arms transfers, which was also unnumbered on the White House website, must have been NSPM 10.

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

Arms Control and Nonproliferation: A Catalog of Treaties and Agreements, updated May 8, 2018

Military Suicide Prevention and Response, CRS In Focus, April 30, 2018

Oil and Gas Activities Within the National Wildlife Refuge System, May 9, 2018

Civilian Nuclear Waste Disposal, updated May 9, 2018

High Intensity Drug Trafficking Areas (HIDTA) Program, May 3, 2018

U.S. Circuit and District Court Nominations During President Trump’s First Year in Office: Comparative Analysis with Recent Presidents, May 2, 2018

From Slip Law to United States Code: A Guide to Federal Statutes for Congressional Staff, May 2, 2018

Covert Action and Clandestine Activities of the Intelligence Community: Selected Notification Requirements in Brief, May 7, 2018

The Director of National Intelligence (DNI), CRS In Focus, May 1, 2018

In a significant expansion of intelligence record preservation, email from more than 426 Central Intelligence Agency email accounts will now be captured as permanent historical records. A plan to that effect was approved by the National Archives last week.

In 2014, the CIA had said that it intended to preserve the emails of only 22 senior officials, a startlingly low number considering the size and importance of the Agency. The National Archives initially recommended approval of the CIA proposal.

But as soon as the CIA proposal was made public, it generated a wave of opposition from members of Congress and public interest groups.

“In our experience, email messages are essential to finding CIA records that may not exist in other so-called permanent records at the CIA,” wrote Senators Dianne Feinstein and Saxby Chambliss in November 2014, when they were chair and vice chair of the Senate Intelligence Committee. “Applying the new proposal to all but the 22 most senior CIA officials means the new policy would allow the destruction of important records and messages of a number of top CIA officials.”

In light of such objections, NARA agreed to reassess the CIA plan. It was officially withdrawn by CIA in 2016.

The new plan, submitted by CIA in July 2017 and approved by NARA on April 24, extends email record preservation much deeper into the CIA bureaucracy, requiring retention of the email of many program managers and office directors that were missing from the original plan.

The newly approved plan identifies 426 accounts subject to capture as permanent records. However, a number of other email accounts covered by the new plan are classified “due to the names of some offices noted on the form as well as the number of accounts in certain categories,” said Meg Phillips, external affairs liaison for NARA. The total number is therefore greater than 426.

The CIA’s new plan “resolves the majority of comments or concerns raised during the public comment period” regarding the previous plan, Ms. Phillips said.

“In the future, NATO might have to rely as much on its agility and capacity for innovation as it has previously relied on its military technological advantage,” says a new report from the Congressional Research Service that reviews NATO’s response to the current threat environment and the changing technological landscape. See Transatlantic Perspectives on Defense Innovation: Issues for Congress, April 24, 2018.

Other new and updated publications from the Congressional Research Service this week include the following.

Law Enforcement Access to Overseas Data Under the CLOUD Act, CRS Legal Sidebar, May 2, 2018

The Travel Ban Case and Nationwide Injunctions, CRS Legal Sidebar, May 2, 2018

Federal Disaster Assistance After Hurricanes Katrina, Rita, Wilma, Gustav, and Ike, updated May 1, 2018

Issues in International Corporate Taxation: The 2017 Revision (P.L. 115-97), May 1, 2018

CRS Products on North Korea, updated May 1, 2018

For the fourth year in a row, the Department of Defense has asked Congress to legislate a new exemption from the Freedom of Information Act in the FY2019 national defense authorization act for certain unclassified military tactics, techniques and procedures.

Previous requests for such an exemption were rebuffed or ignored by Congress.

The Defense Department again justified its request by explaining that a 2011 US Supreme Court decision in Milner v. Department of the Navy had significantly narrowed its authority to withhold such information under FOIA.

“Before that decision, the Department was authorized to withhold sensitive information on critical infrastructure and military tactics, techniques, and procedures from release under FOIA pursuant to Exemption 2,” DoD wrote in a legislative proposal that was transmitted to Congress on March 16 and posted online yesterday by the Pentagon’s Office of General Counsel.

“This proposal similarly would amend section 130e to add protections for military tactics, techniques, and procedures (TTPs), and rules of engagement that, if publicly disclosed, could reasonably be expected to provide an operational military advantage to an adversary.”

In a new justification added this year, DoD further argued that the exemption was needed to protect its cyber activities. “The probability of successful cyber operations would be limited with the public release of cyber-related TTPs. This [FOIA exemption] proposal would add a layer of mission assurance to unclassified cyber operations and enhance the Department of Defense’s ability to project cyber effects while protecting national security resources.”

New FOIA exemptions are often unpopular and are not always routinely approved by Congress, which has repeatedly dismissed this particular proposal.

DoD has circumscribed the proposed exemption in such a way as to limit its likely impact and to make it somewhat more palatable if it were ever adopted. It would not apply to all TTPs, many of which are freely disclosed online. It would require personal, non-delegable certification by the Secretary of Defense that exemption of particular information was justified. And it would include a balancing test requiring consideration of the public interest in disclosure of information proposed for exemption.

But many FOIA advocates said the proposal was nonetheless inappropriate. It “would undermine the FOIA, creating an unnecessary and overbroad secrecy provision at odds with FOIA’s goal of transparency and accountability to the public,” they wrote in a letter objecting to last year’s version of the proposal.

The Central Intelligence Agency can selectively disclose classified information to reporters while withholding that very same information from a requester under the Freedom of Information Act, a federal court ruled last month.

The ruling came in a FOIA lawsuit brought by reporter Adam Johnson who sought a copy of emails sent to reporters Siobhan Gorman of the Wall Street Journal, David Ignatius of the Washington Post, and Scott Shane of the New York Times that the CIA said were classified and exempt from disclosure.

“The Director of Central Intelligence is free to disclose classified information about CIA sources and methods selectively, if he concludes that it is necessary to do so in order to protect those intelligence sources and methods, and no court can second guess his decision,” wrote Chief Judge Colleen J. McMahon of the Southern District of New York in a decision in favor of the CIA that was released last week with minor redactions.

The Freedom of Information Act is a tool that can change as it is used, whether for the better or the worse, especially since FOIA case law rests on precedent. That means that a FOIA lawsuit that is ill-advised or poorly argued or that simply fails for any reason can alter the legal landscape to the disadvantage of future requesters. In particular, as anticipated a few months ago, “a lawsuit that was intended to challenge the practice of selective disclosure could, if unsuccessful, end up ratifying and reinforcing it.” That is what has now happened.

The shift is starkly illustrated by comparing the statements of Judge McMahon early in the case, when she seemed to identify with the plaintiff’s perspective, and her own final ruling that coincided instead with the CIA’s position.

“There is absolutely no statutory provision that authorizes limited disclosure of otherwise classified information to anyone, including ‘trusted reporters,’ for any purpose, including the protection of CIA sources and methods that might otherwise be outed,” she had previously stated in a January 30 order.

“In the real world, disclosure to some who are unauthorized operates as a waiver of the right to keep information private as to anyone else,” which was exactly the plaintiff’s point.

“I suppose it is possible,” she added in a cautionary footnote, “that the Government does not consider members of the press to be part of ‘the public.’ I do.”

But this congenial (to the plaintiff) point of view would soon be abandoned by the court. By the end of the case, the mere act of disclosure to one or more members of the press would no longer be deemed equivalent to “public disclosure” for purposes of waiving an exemption from disclosure under FOIA.

Instead, Judge McMahon would come to accept, as the CIA argued in a February 14 brief, that “a limited disclosure of information to three journalists does not constitute a disclosure to the public. Where, as here, the record shows that the classified and statutorily protected information at issue has not entered the public domain, there is no waiver of FOIA’s exemptions.”

Plaintiff Johnson objected that “the Government cannot define ‘public’ to mean members of the public it is not disclosing information to.”

“The Government’s position that it may selectively disclose without waiver, if it has the best of intentions, knows no logical limits and would render the FOIA waiver doctrine a nullity,” he wrote. “The CIA’s motive in releasing the information is irrelevant under FOIA. Whether good reason, bad reason, or no reason at all, what matters is that an authorized disclosure took place. If the CIA does not wish to waive its secrecy prerogative, it cannot authorize a disclosure to a member of the public.”

In an amicus brief, several FOIA advocacy groups presented a subtle technical argument in support of the plaintiff. Under the circumstances, they concluded, the court had no choice but to order disclosure. “It does not matter… how much alleged damage the release of the information could cause.”

But these counterarguments proved unpersuasive to the court, and Judge McMahon ended up with a new conception of what constitutes the kind of prior “public disclosure” that would compel release of information under FOIA. Selective disclosure to individual reporters would not qualify.

“For something to be ‘public,’ it has to, in some sense, be accessible to members of the general public,” she now held in her final opinion.

“Selective disclosure of protectable information to an organ of the press… does not create a ‘truly public’ record of that information.” So CIA cannot be forced to disclose it to others. This was exactly the opposite of the view expressed by Judge McMahon earlier in the case.

The ruling was a defeat for the FOIA in the sense that it affirmed and strengthened a barrier to disclosure.

But it might also be considered a victory for the press, to the extent that it enables exchange of classified information with reporters off the record. Had the court compelled disclosure of the classified CIA emails to reporters Gorman, Ignatius and Shane, that would likely have reduced or eliminated the willingness of agencies to share classified information with reporters, as they occasionally do.

But the practice of selective disclosure has risks of its own, wrote plaintiff’s attorney Dan Novack last year. It “allow[s] the government to hypocritically release sensitive national security information when it suits its public relations interests without fear of being held to its own standard later.”