The US Constitution leaves many basic questions of constitutional law unanswered, whether because they could not be anticipated or because the text is broadly worded or ambiguous.

Consequently, “Interpretation is necessary to determine the meaning of ambiguous provisions of the Constitution or to answer fundamental questions left unaddressed by the drafters,” a new report from the Congressional Research Service explains.

But there are different ways to perform such interpretation that may yield different results.

The new CRS report provides a helpful introduction to the most common “modes” of interpretation, including textualism, original meaning, judicial precedent, pragmatism, moral reasoning, national identity, structuralism, and historical practices.

Interpreting the Constitution is not a task left solely to the Supreme Court; it is also a responsibility of Members of Congress. “Members should vote upon legislation based on their own constitutional interpretations, which may be at odds with the Court’s,” wrote former Sen. Russ Feingold, but “they should not vote for legislation without any thought whatsoever regarding its constitutionality.”

See Modes of Constitutional Interpretation, March 15, 2018.

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

The U.S. Export Control System and the Export Control Reform Initiative, updated March 15, 2018

The Committee on Foreign Investment in the United States (CFIUS), updated March 13, 2018

China-U.S. Trade Issues, updated March 14, 2018

Pass-Throughs, Corporations, and Small Businesses: A Look at Firm Size, updated March 15, 2018

Jurisdiction Stripping: When May Congress Prohibit the Courts from Hearing a Case?, CRS Legal Sidebar, March 15, 2018

Membership of the 115th Congress: A Profile, updated March 19, 2018

Women in Congress, 1917-2018: Service Dates and Committee Assignments by Member, and Lists by State and Congress, updated March 19, 2018

Last year, the Congressional Research Service generated more than 1,100 new products and and updated 2,100 others, according to a new CRS annual report to Congress.

The annual report describes the Service’s structure, operation, recent activities and new initiatives. It scarcely mentions thorny issues such as the adequacy of the CRS budget, or the challenges posed by the retirement of senior analysts. It does not address the question of providing broad public access to CRS reports at all.

But it does include a useful listing of all new and updated CRS products from the past year, covering an impressive range of issues (in Appendix F).

See CRS Annual Report, Fiscal Year 2017, January 2018 (published March 2018).

Recently, a group of current and former CRS analysts wrote to CRS director Mary Mazanec and Librarian of Congress Carla Hayden to raise questions about CRS’s “approach to objectivity and saliency in today’s political environment.”

Objectivity is not the same as neutrality or refusal to express a conclusion, they argued.

“We are concerned that CRS risks falling short of its mission if it holds back the independent analysis that Congress has directed us to provide. Sparking our concern, CRS has appeared to avoid reaching conclusions in some topic areas with high potential for political controversy. In some such topic areas, CRS operates as a neutral compiler of facts and opinions, with little of the expert analysis, appraisal, and evaluation of their credibility that Congress requires. CRS also seems to have avoided a few topics or facets of topics almost entirely,” the current and former CRS authors wrote in a January 12 letter.

In short, they suggested, CRS needs to “recalibrate its objectivity practices.”

Some new and updated CRS reports this week include the following.

Arming Teachers as a Response to School Shootings, CRS Insight, March 13, 2018

Can the Government Prohibit 18-Year-Olds from Purchasing Firearms?, CRS Legal Sidebar, March 13, 2018

The President Acts to Impose Tariffs on Steel and Aluminum Imports, CRS Insight, March 13, 2018

Organization of American States: Background and Issues for Congress, updated March 14, 2018

Northern Ireland, Brexit, and the Irish Border, CRS Insight, March 12, 2018

Russia’s 2018 Presidential Election, CRS Insight, March 13, 2018

Navy Columbia (SSBN-826) Class Ballistic Missile Submarine Program: Background and Issues for Congress, updated March 13, 2018

The National Declassification Center released a listing of 134 record collections that have undergone declassification review in the past five months.

The collections include records on the Weapons System Evaluations Group (discussed here), a compilation of records assembled by Judge Merrick Garland when he was special assistant to the attorney general in 1979-81 (discussed here), embassy files from Indonesia, Iraq, and Burundi, and miscellaneous others.

Meanwhile, the Public Interest Declassification Board said that it will soon release a draft report on “modernization of the US national security classification and declassification system.” The Board said it will seek public comments and feedback on the draft report prior to its finalization.

Updated below

The US Air Force is suspending media embeds, base visits and interviews “until further notice” and it “will temporarily limit the number and type of public engagements” by public affairs officers and others while they are retrained to protect sensitive information, according to guidance obtained by Defense News.

“In line with the new National Defense Strategy, the Air Force must hone its culture of engagement to include a heightened focus on practicing sound operational security,” the new guidance memo said.

“As we engage the public, we must avoid giving insights to our adversaries which could erode our military advantage. We must now adapt to the reemergence of great power competition and the reality that our adversaries are learning from what we say in public.”

Notably, the new Air Force guidance does not distinguish between classified and unclassified information. Nor does it define the scope of “sensitive operational information” which must be protected.

The March 1, 2018 memo was reported (and posted) in “Air Force orders freeze on public outreach” by Valerie Insinna, David B. Larter, and Aaron Mehta, Defense News, March 12.

As it happens, a counter-argument in favor of enhanced Air Force release of information was made just last week by Air Force Secretary Heather Wilson.

“The Air Force has an obligation to communicate with the American public, including Airmen and families, and it is in the national interest to communicate with the international public,” the Secretary stated in a March 8 directive.

“Through the responsive release of accurate information and imagery to domestic and international audiences, public affairs puts operational actions in context, informs perceptions about Air Force operations, helps undermine adversarial propaganda efforts and contributes to the achievement of national, strategic and operational objectives.”

“The Air Force shall respond to requests for releasable information and material. To maintain the service’s credibility, commanders shall ensure a timely and responsive flow of such information,” she wrote.

But by the same token, unwarranted delays or interruptions in the public flow of Air Force information threaten to undermine the service’s credibility. See Public Affairs Management, Air Force Policy Directive 35-1, March 8, 2018.

Update: “It’s not a freeze. We continue to do many press engagements daily,” said [Air Force] Brig. Gen. Ed Thomas. We are fully committed — and passionate about — our duty and obligation to communicate to the American people.” See The Air Force’s PR Fiasco: How a plan to tighten security backfired, Washington Examiner, March 14, 2018.

House Democrats have introduced two resolutions in the current Congress to censure the President. Neither resolution is expected to advance.

But a new memo from the Congressional Research Service considers whether such resolutions are permissible in practice, and concludes: “It would appear that Congress may censure the President through a simple (one chamber) or concurrent (two chamber) resolution, or other non-binding measure, so long as the censure does not carry with it any legal consequence.” See The Constitutionality of Censuring the President, CRS Legal Sidebar, March 12, 2018.

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

Threats to National Security Foiled? A Wrap Up of New Tariffs on Steel and Aluminum, CRS Legal Sidebar, March 12, 2018

Cybersecurity: Selected Issues for the 115th Congress, March 9, 2018

Defense Primer: U.S. Transportation Command (TRANSCOM), CRS In Focus, March 6, 2018

Does Executive Privilege Apply to the Communications of a President-elect?, CRS Legal Sidebar, March 8, 2018

The United Kingdom: Background, Brexit, and Relations with the United States, updated March 12, 2018

Northern Ireland: Current Issues and Ongoing Challenges in the Peace Process, updated March 12, 2018

TPP Countries Sign New CPTPP Agreement without U.S. Participation, CRS Insight, March 9, 2018

The National Declassification Center is preparing to release a set of newly declassified records concerning a little-known Pentagon advisory group called the Weapons Systems Evaluation Group (WSEG) that operated from 1948 to 1976.

The purpose of the WSEG was “to provide rigorous, unprejudiced and independent analyses and evaluations of present and future weapons systems under probable future combat conditions– prepared by the ablest professional minds, military and civilian, and the most advanced analytical methods that can be brought to bear,” according to its founding 1948 directive.

For at least part of its existence, the WSEG “occupied a preeminent position as the principal analytical support agency of its kind at the upper echelons of the DoD,” an official 1979 history of the organization said.

An overview of the upcoming release of declassified WSEG records was posted yesterday by Alex Daverede of the National Declassification Center.

The records include a broad range of topics on weapons systems and war fighting in the early cold war context, only a portion of which will actually be made public. One report, that apparently will remain classified, is entitled “Capabilities of Atomic Weapons for the Attack of Troop Targets.” Other studies address air defense, biological warfare, Soviet military systems, and more.

“I should be done with the declassification work by the end of the month, perhaps sooner,” Mr. Daverede said yesterday.

“This was not a big project for us–only 18 Hollinger [document storage] boxes,” he said. “Ten boxes hold documents that retained their classification after they were re-reviewed, so actual pages released would probably be closer to 5K pages.  Unfortunately there are multiple copies of each document, so in terms of unique pages declassified we are looking at considerably less than 5K.  The up side is that the whole series had been exempt before we re-examined it, so I feel pretty good about getting some records of this obscure organization out on the street.”

Some of the war-fighting topics considered by the WSEG were also on the mind of Daniel Ellsberg during some of the same years, as he discussed in his recent book The Doomsday Machine: Confessions of a Nuclear War Planner. The book has been widely and favorably reviewed in Slate, the New York Times, the Washington Post, the New York Review of Books, and Arms Control Today (by Robert S. Norris of FAS), among others.

Ellsberg did not mention the WSEG in his book, but the WSEG was well aware of him.

There was a “period of JCS retrenchment in SIOP-related studies after the Ellsberg incident,” according to the 1979 WSEG history. That is, there was a decline in nuclear targeting studies requested by the Joint Chiefs of Staff from the WSEG following Ellsberg’s release of the Pentagon papers.

In January, the Department of Defense ordered the Special Inspector General for Afghanistan Reconstruction (SIGAR) not to publish certain data on areas of Afghanistan that were held by insurgents.

“This development is troubling for a number of reasons, not least of which is that this is the first time SIGAR has been specifically instructed not to release information marked ‘unclassified’ to the American taxpayer,” the SIGAR said in its January 2018 report to Congress.

But the Department of Defense soon reversed course, saying it was an error to withhold that information.

Last week, the SIGAR published an addendum to its January report that provided the previously suppressed data. In addition, a detailed control map and the underlying data for each of Afghanistan’s 407 districts were declassified and published. See Addendum to SIGAR’s January 2018 Quarterly Report to the United States Congress, February 26, 2018.

The basic thrust of the new data is that Afghan government control of the country is at its lowest reported level since December 2015, while insurgency control is at its highest.

“The percentage of districts under insurgent control or influence has doubled since 2015,” the SIGAR addendum said.

Members of Congress are urging the executive branch to update and expand the security clearance process by examining the social media presence of individuals who are being considered for a security clearance for access to classified information, which is now being done only on a limited and uneven basis.

“I put more effort into understanding who my interns are” than the security clearance process does in granting clearances, said Senate Intelligence Committee chairman Sen. Richard Burr at a hearing yesterday. “You go to the areas that you learn the most about them — social media is right at the top of the list.”

“I can’t envision anyone coming into the office that you haven’t thoroughly checked out everything that they’ve said online,” Sen. Burr said.

On Tuesday, the House of Representatives passed a bill to promote the use of social media in security clearance investigations.

“It may be hard to believe, but the Federal Government often fails to conduct a simple internet search on individuals before they are trusted with a security clearance,” said Rep. Ron DeSantis (R-FL).

“Publicly available social media is one of the best ways to understand an individual’s interests and intentions, but our investigatory process still focuses on interviewing the applicant’s family, friends, and neighbors,” he said.

In fact, then-Director of National Intelligence James R. Clapper issued a directive in 2016 authorizing — but not requiring — the use of social media in security clearance background investigations. See Security Executive Agent Directive 5 on Collection, Use, and Retention of Publicly Available Social Media Information in Personnel Security Background Investigations and Adjudications, May 12, 2016.

But the practice has apparently been adopted unevenly and on a limited basis.

“For example, the Army initiated a pilot program that found that while checking social media is a valuable tool, it can be costly and may raise some legal issues,” said Rep. Gerry Connolly (D-VA).

The bill passed by the House this week would require the OMB to report on current use of social media in background investigations, legal impediments to such use, the results of any pilot programs, and options for widespread implementation.

The bill “is a much needed first step in modernizing federal security clearance background investigations,” said a House Committee report on the bill. “In recent years, there have been several cases in which federal contractor employees with security clearances leaked classified information after previously sharing suspicious posts on publicly available social media sites.”

The National Archives said last week that it will gather tens of millions of pages of classified historical records from Presidential Libraries around the country and will bring them to Washington, DC for declassification review.

“We are making this change to increase the efficiency and effectiveness of the safeguarding and the declassification of this material and in light of resource challenges,” said NARA chief operating officer William J. Bosanko. “Researchers are expected to benefit from efficiencies we can gain in the declassification process.”

“It is important to stress that this change in physical location of the records is temporary and that the records will be returned to the Presidential Libraries as they are declassified,” he wrote in a March 1 message.

Is it really necessary to physically move the records to DC in order to declassify them? Isn’t there at least a subset of classified records at presidential libraries that could be readily declassified on site?

“My personal opinion is yes (although the size of the subset changes greatly from Library to Library),” replied Mr. Bosanko by email today.  “However, this comes back to age-old issues around declassification authority and third-agency referrals.  With the policies that are in place, in a practical sense, the answer is no (and, the status quo has not realized the sort of declassification I think is at the heart of your question).  And, bringing them here makes it much easier to address long-standing challenges such as certain topics that cut across more than one Administration.”

There are approximately 75 million pages of classified records at presidential libraries that will be affected by the move, Mr. Bosanko said. Duplicate copies will not be kept at the libraries during the declassification review.

“We are just starting the planning process and many details must still be worked out,” he wrote.

The Department of Defense has decided to classify previously public information regarding future flight tests of ballistic missile defense systems and components.

Information about pending missile defense flight tests, their objectives, and their timing had previously been included in each year’s budget request documents. But that is no longer the case, and such information was withheld from the FY 2019 Missile Defense Agency RDT&E budget book that was published last month.

“Due to the need to safeguard critical defense information, the DOD will not provide timing or test details in advance beyond the required safety notifications for any planned flight tests,” Lt. Gen. Sam Greaves told Jason Sherman of InsideDefense, who noticed the newly restrictive disclosure practice. See “DOD now treating missile defense flight test plans — once public — as classified” by Jason Sherman, Inside the Pentagon, March 1 (subscription req’d).

Classification of flight test information makes it harder for outside observers and overseers — not just foreign intelligence services — to monitor the progress of US ballistic missile defense programs. The Missile Defense Agency’s specific justification for classifying previously unclassified categories of flight test information has not been publicly explained.

The possibility of mobilizing members of the public to collect information — “crowdsourcing” — to enhance verification of international nuclear safeguards is explored in a new report from Sandia National Laboratories.

“Our analysis indicates that there are ways for the IAEA [International Atomic Energy Agency] to utilize data from crowdsourcing activities to support safeguards verification,” the authors conclude.

But there are a variety of hurdles to overcome.

“Some implementations of crowdsourcing for safeguards are legally or ethically uncertain, and must be carefully considered prior to adoption.”

Crowdsourced information, like other information, has to be independently verified, particularly since it is susceptible to error, manipulation and deception.

The report builds on previous work cited in a bibliography. See Power of the People: A Technical, Ethical and Experimental Examination of the Use of Crowdsourcing to Support International Nuclear Safeguards Verification by Zoe N. Gastelum, et al, Sandia National Laboratories, October 2017.

As of August 2017, the Department of Defense (DoD) had obligated $1.474 trillion for war-related costs since September 11, 2001. DoD updated its official cost report last month. See Cost of War Update as of August 31, 2017.

Average monthly spending in 2017 was $3.9 billion, up from an average of $3.5 billion in 2016, the report said.

The total post-9/11 spending figure includes $83 billion in classified appropriations, not including non-DoD classified expenditures (e.g. CIA spending).

The reported costs of war are highly dependent on the definition of the term. DoD’s total figure, which does not include many kinds of indirect costs, is substantially lower than estimates by other analysts such as the Watson Institute at Brown University, which placed the total figure at $5.6 trillion as of November 2017.

The DoD report also understates the number of US troops deployed in Afghanistan, Iraq and Syria.