Short-term funding of the government is currently set to expire on December 8. If funding is not extended by Congress, then most government operations would have to cease.

The processes and procedures by which such a shutdown would be executed, as well as its broader implications, were described in a newly updated report from the Congressional Research Service.

“Government shutdowns have necessitated furloughs of several hundred thousand federal employees, required cessation or reduction of many government activities, and affected numerous sectors of the economy,” the CRS report said.

“The longest such shutdown lasted 21 full days during FY1996, from December 16, 1995, to January 6, 1996. More recently, a funding gap commenced on October 1, 2013, the first day of FY2014, after funding for the previous fiscal year expired.” It lasted 16 days. See Shutdown of the Federal Government: Causes, Processes, and Effects, November 30, 2017.

And see, relatedly, Funding Gaps and Government Shutdowns: CRS Experts, November 28, 2017.

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

Deficits and Debt: Economic Effects and Other Issues, updated November 21, 2017

The Trump Administration and the Unified Agenda of Federal Regulatory and Deregulatory Actions, November 29, 2017

Nuclear Energy: Overview of Congressional Issues, updated November 27, 2017

Repair or Rebuild: Options for Electric Power in Puerto Rico, November 16, 2017

Federal Role in Voter Registration: The National Voter Registration Act of 1993 and Subsequent Developments, November 28, 2017

Social Security Primer, updated November 30, 2017

Reauthorization of the Federal Aviation Administration (FAA) in the 115th Congress, updated November 30, 2017

Statute of Limitation in Federal Criminal Cases: An Overview, updated November 14, 2017

Contested Elections in Honduras, CRS Insight, November 30, 2017

Colombia: Background and U.S. Relations, updated November 14, 2017

Iran’s Expanding Economic Relations with Asia, CRS Insight, November 29, 2017

New Zealand: Background and Bilateral Relations with the United States, updated November 13, 2017

Federal Disaster Assistance: The National Flood Insurance Program and Other Federal Disaster Assistance Programs Available to Individuals and Households After a Flood, updated November 28, 2017

Navy DDG-51 and DDG-1000 Destroyer Programs: Background and Issues for Congress, updated November 30, 2017

Navy Littoral Combat Ship (LCS) Program: Background and Issues for Congress, updated November 30, 2017

Navy Lasers, Railgun, and Hypervelocity Projectile: Background and Issues for Congress, updated November 30, 2017

Killing Endangered Species: What’s Reasonable Self-Defense?, CRS Legal Sidebar, November 29, 2017

Who’s the Boss at the CFPB?, CRS Legal Sidebar, November 28, 2017

The principle of “net neutrality,” which requires telecommunications companies to provide equal, non-discriminatory access to the Internet, is likely to be weakened next month when the Federal Communications Commission takes up a proposal to modify Obama-era regulations on net neutrality.

The Congressional Research Service produced a newly updated report on the subject, suggesting that congressional intervention might be appropriate.

“The FCC’s move to reexamine its existing open Internet rules has reopened the debate over whether Congress should consider a more comprehensive measure to amend existing law to provide greater regulatory stability and guidance to the FCC,” the CRS report said, adding that whether Congress would do so “remains to be seen.”  See The Net Neutrality Debate: Access to Broadband Networks, updated November 22, 2017.

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Another new CRS report notes that the 11 remaining signatories of the Trans-Pacific Partnership (TPP) agreement are moving forward without the US, following President Trump’s January 2017 withdrawal from the negotiations. Twenty provisions of the agreement that had been sought by US negotiators have now been suspended as a result. See TPP Countries Near Agreement without U.S. Participation, CRS Insight, November 20, 2017.

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

Zimbabwe’s Political Transition: Issues for Congress, CRS Insight, November 22, 2017

Cuba: U.S. Policy in the 115th Congress, updated November 22, 2017

FY2018 National Defense Authorization Act: Selected Military Personnel Issues, November 22, 2017

End-Year DOD Contract Spending, CRS In Focus, November 17, 2017

Keystone XL Pipeline: Recent Developments, November 21, 2017

The Distribution of the Tax Policy Changes in H.R. 1 and the Senate’s Tax Cuts and Jobs Act, CRS Insight, November 21, 2017

FDA Human Medical Product User Fee Programs: In Brief, November 21, 2017

Post-Heller Second Amendment Jurisprudence, November 21, 2017

The Campus-Based Financial Aid Programs: Background and Issues, November 21, 2017

Fibbing to Get a Lawyer: Circuits Split on Punishment, CRS Legal Sidebar, November 27, 2017

The Federal Government’s Plenary Immigration Power Collides with the Constitutional Right to an Abortion (Part I), CRS Legal Sidebar, November 27, 2017

Navy Columbia (SSBN-826) Class Ballistic Missile Submarine Program: Background and Issues for Congress, updated November 22, 2017

Navy Force Structure and Shipbuilding Plans: Background and Issues for Congress, updated November 22, 2017

“After early promises to be the most transparent administration in history, the Obama administration turned out to be one of the most secretive,” wrote Washington Post media columnist Margaret Sullivan last year.

Speaking at Harvard’s Shorenstein Center last month, former ACLU litigator Jameel Jaffer didn’t go quite that far. He acknowledged that Obama had taken some small steps towards greater transparency, such as making White House visitor logs available and declassifying the Office of Legal Counsel memos on intelligence interrogation (the “torture memos”).

But overall, Obama was a disappointment, said Jaffer, a respected figure who now directs the Knight First Amendment Institute at Columbia University.

“Few people today–and certainly very few transparency advocates–believe that President Obama kept his promise,” he said.  See Government Secrecy in the Age of Information Overload, October 17, 2017.

That seems wrong.

A fair reading of the record shows that in dozens of areas of national security secrecy, the Obama Administration broke down longstanding barriers to public access and opened up previously inaccessible records of enormous importance and value. Some examples:

*    In 2010, the Obama Administration declassified the current size of the U.S. nuclear weapons arsenal for the first time ever. Even during the heyday of the Energy Department Openness Initiative of the 1990s, only historical stockpile data from 30 years earlier was released.

*    The Obama Administration was also the first ever to publish the amount of the intelligence budget request for the following year. This information had been the subject of FOIA litigation in the Clinton Administration but without success. Remarkably, there is no statutory requirement to publish the budget request for the Military Intelligence Program. But the Obama Administration did so anyway.

*     A decade ago, the CIA had claimed in court that the President’s Daily Brief (PDB) was itself an “intelligence method” and therefore categorically exempt from disclosure. Obama rejected that view and ordered that no information be exempt from declassification “based solely on the type of document or record in which it is found.” Thousands of historical PDBs were declassified as a result.

*    Prior to the Obama Administration, one had to have “sources” simply to find out the names of the judges who sat on the Foreign Intelligence Surveillance Court. Now the Court has its own website and it has never been more open to third-party oversight or participation.

*    The Obama Administration established a National Declassification Center to facilitate and streamline declassification. Amazingly, the Center undertook the successful declassification of a large collection of records from the US Embassy in Indonesia in the 1960s last year in response to a request from an individual member of the public.

These are all discrete policy actions that may be of interest to some people and not to others. Not everyone cares about nuclear weapons or intelligence or Indonesia or other such topics. But under Obama there was also a systemic contraction in the whole apparatus of government secrecy. Thus:

*    In 2014, the Obama Administration achieved the lowest number of “original classification decisions” (or newly-generated secrets) that had ever been reported by the Information Security Oversight Office. In 2016, the reported number of new secrets dropped lower still.

*    Not coincidentally, in 2015, the Obama Administration reduced the number of “original classification authorities” — i.e. officials who are authorized to create new secrets — to the lowest number ever reported.

*    The Obama Administration made a policy decision to shrink the size of the security-cleared population, both to reduce vulnerabilities and to conserve resources. The number of persons holding security clearances for access to classified information dropped accordingly from around 5.1 million in 2013 to 4.2 million in 2015.

Is all of that sufficient to justify a claim that the Obama Administration was “the most transparent in history”? Not necessarily. (And not only because “transparency” means different things to different people.)

One would also have to weigh the Administration’s failings, such as its (mis)handling of the Senate Intelligence Committee report on enhanced interrogation practices, among other unhappy episodes. And then one would then have to compare the composite record to that of other Administrations. But it is far from obvious that any other Administration has a stronger claim than Obama’s to being named “most transparent,” and neither Jaffer nor Sullivan has proposed one.

It is beyond argument that Obama established new benchmarks for disclosure of many types of national security information that had previously been withheld, and that his Administration imposed new constraints on the creation of classified information.

Ignoring or dismissing the Obama record of disclosure makes it impossible to inquire how such disclosures happened, and how they could be replicated and extended. Cynicism is a poor foundation for strategy.

The US Air Force and Navy might choose to train their fighter pilots in simulations using enemy aircraft that are flown by contractors, the Congressional Research Service said in a new brief.

“Particularly in the case of the Air Force, which has increasingly publicized a shortage of pilots, using contractors to provide adversary air may free up experienced uniformed pilots for other duties,” CRS said. Doing so would also “offer U.S. pilots the opportunity to fly against a diversity of aircraft types without the overhead and expense required to maintain a fleet of planes not otherwise in inventory.” See Contracting the Adversary, CRS Insight, November 16, 2017.

Other new or updated products of the Congressional Research Service include the following.

Zimbabwe: A Military-Compelled Transition?, CRS Insight, November 16, 2017

Private Flood Insurance and the National Flood Insurance Program (NFIP), CRS Insight, updated November 17, 2017

The Individual Mandate for Health Insurance Coverage: In Brief, updated November 16, 2017

Tax Incentives for Charitable Giving in the Tax Cuts and Jobs Act (H.R. 1), CRS Insight, November 17, 2017

Monuments and Memorials Authorized and Completed Under the Commemorative Works Act in the District of Columbia, updated November 17, 2017

Monuments and Memorials Authorized Under the Commemorative Works Act in the District of Columbia: Current Development of In-Progress and Lapsed Works, updated November 17, 2017

OPEC and Non-OPEC Crude Oil Production Agreement: Compliance Status, CRS Insight, November 16, 2017

A compilation of online documents and databases related to cybersecurity is presented by the Congressional Research Service in Cybersecurity: Cybercrime and National Security Authoritative Reports and Resources, November 14, 2017.

Other new and updated publications from CRS include the following.

A Primer on U.S. Immigration Policy, November 14, 2017

Defense Primer: Department of Defense Maintenance Depots, CRS In Focus, November 7, 2017

Potential Effects of a U.S. NAFTA Withdrawal: Agricultural Markets, November 13, 2017

State Exports to NAFTA Countries for 2016, CRS memorandum, n.d., October 24, 2017

Membership of the 115th Congress: A Profile, updated November 13, 2017

Drought in the United States: Causes and Current Understanding, updated November 9, 2017

Impact of the Budget Control Act Discretionary Spending Caps on a Continuing Resolution, CRS Insight, November 14, 2017

Saudi Arabia: Background and U.S. Relations, updated November 14, 2017

Jordan: Background and U.S. Relations, updated November 14, 2017

The Latest Chapter in Insider Trading Law: Major Circuit Decision Expands Scope of Liability for Trading on a “Tip”, CRS Legal Sidebar, November 14, 2017

In Any Way, Shape, or Form? What Qualifies As “Any Court” under the Gun Control Act?, CRS Legal Sidebar, November 14, 2017

Generalized System of Preferences: Overview and Issues for Congress, updated November 14, 2017

Trade Promotion Authority (TPA): Frequently Asked Questions, updated November 14, 2017

The Article V Convention to Propose Constitutional Amendments: Current Developments, November 15, 2017

A total of 5,784 patent applications remained subject to invention secrecy orders at the end of Fiscal Year 17, according to new data provided by the US Patent and Trademark Office.

The secrecy orders, issued under the Invention Secrecy Act of 1951, restrict disclosure of patent applications considered to be “detrimental to national security” if published.

That total number was up slightly from the 5,680 secrecy orders that were in effect a year earlier.

Most existing patent secrecy orders are renewed year after year.

In FY17, there were 132 new secrecy orders that were imposed, and 28 existing orders that were rescinded, according to the US PTO data. There were 39 new “John Doe” orders imposed on private inventors who sought to patent inventions in which the government has no property interest.

Most invention secrecy applies to inventions involving technology relevant to military applications, but the full scope of the invention secrecy program is not described in public documents.

“Sunlight is said to be the best of disinfectants,” Louis Brandeis famously wrote a century ago in praise of publicity.

But in fact there are many better disinfectants, such as iodine and alcohol. And in excess, sunlight itself can induce sunburn or even skin cancer.

Likewise, by analogy, “transparency” as a political virtue is rife with questionable or erroneous assumptions, writes law professor Mark Fenster in his new book The Transparency Fix: Secrets, Leaks, and Uncontrollable Government Information (Stanford University Press, 2017).

The ideal of a fully visible state subject to rational public oversight and control has never been achieved and is not a realistic objective, according to Fenster. And it’s not for lack of trying.

“The distance between ideal and reality is not solely the consequence of a failure of public will, nor is it a reflection of government officials’ lack of moral character. Nor is it a failure to develop, calibrate, and roll out the right set of laws, institutions, and technology.” The problem is more fundamental, and may be intractable.

The naive model of transparency in which government discloses itself to an attentive public, thereby enhancing policy deliberation and government accountability, corresponds to reality loosely at best, writes Fenster.

To begin with, government “documents” are never a full representation of the reality of official decision-making. They can never be more than a semantic slice of the whole. Disclosure of such documents is not a neutral process either. It may mislead by its selectivity, or it may overwhelm by its abundance. And the “public” that is the intended audience for transparency may be, and often is, distracted, indifferent, and disengaged.

It follows that more “Disclosure will not necessarily transform the United States or any Western democracy into a model of popular deliberation, participatory decision making, and perfect governance. Western governments and societies are too complex and decentralized, their publics too dispersed, and their information environments too saturated for transparency, by itself, to have significant transformative potential.” (For similar reasons, he finds, massive unauthorized disclosures of official information consistently do less damage than feared.)

“Secrecy is one of many problems that affect government performance, but it occupies too much of our political imagination,” Fenster concludes in this thoughtful and challenging book.

But even if many acts of transparency are indeed futile or inconsequential, that does not mean that all of them are.

Timely disclosure of environmental contamination saves lives. Exposure of conflicts of interests undoubtedly deters and mitigates corruption. Open government laws enable and facilitate public participation in the policy process to a remarkable extent. In Latin America, more than 100 trials of suspected war criminals have been carried out in recent years using evidence derived from declassified U.S. government documents and Freedom of Information Act requests, Tom Blanton of the National Security Archive pointed out lately. Those are just a few of the real-world consequences of well-conceived transparency measures.

A skeptical view of transparency that is cognizant of its theoretical and practical limits “does not require abandoning a commitment to open government and democracy,” Fenster affirms. On the contrary, well-founded skepticism may provide a basis for improving existing transparency practices by focusing them on what is most valuable and most achievable.

We were sad to learn that intelligence historian Jeffrey T. Richelson passed away last weekend.

Richelson was one of a small number of pioneers of a new genre of public interest research focused on national security and intelligence. He advanced the boundaries of public knowledge and understanding of the far-flung national security apparatus through his writing based on official documents, carefully read and digested.

Richelson’s book The US Intelligence Community, published last year in its 7th edition, is so richly detailed as to be hard to read– but enormously valuable as a reference. Other works among the entire shelf of books and articles that he authored, such as Spying on the Bomb on the history of nuclear weapons-related espionage, displayed his story-telling gifts more engagingly.

Richelson had a resolutely independent, almost contrarian streak. In the 1990s when it was becoming conventional wisdom to say that the Central Intelligence Agency failed to anticipate the collapse of the Soviet Union, Richelson wrote an article in The National Interest called “The CIA Vindicated” (with Bruce Berkowitz) in which he argued that the opposite was the case.

Not least important, he was a kind and decent person and a generous colleague.

Jeff Richelson was remembered by the National Security Archive here.

Some government officials who are serving on an “acting” basis because a permanent replacement has not yet been named will lose their ability to function this month when their legal authority is nullified under the terms of the Vacancies Act.

In the Trump Administration there are hundreds of government agency positions requiring Senate confirmation that have gone unfilled. In many cases, their responsibilities have been assumed by “acting” officials.

But by law, that arrangement can only be temporary. The Federal Vacancies Reform Act of 1998 specifies that “acting” officers can fill positions requiring confirmation for no more than 210 days. If the position is vacant at the start of a new Administration, an extension of 90 days is allowed, for a total of 300 days.

The 300 day period from Inauguration Day last January 20 will end on November 16, 2017. After that, certain acting officials will no longer be able to carry out their duties.

“If the acting officer remains in office and attempts to perform a nondelegable function or duty — one that a statute or regulation expressly assigns to that office — that action will ‘have no force or effect’,” according to a new brief from the Congressional Research Service.

See Out of Office: Vacancies, Acting Officers, and Day 301, CRS Legal Sidebar, November 1, 2017. See also The Vacancies Act: A Legal Overview, October 30, 2017.

President Trump does not appear to be concerned about the matter. Asked about high level vacancies in the State Department last week, he told Laura Ingraham of Fox that most of the government positions awaiting confirmed nominees were superfluous. “I’m the only one that matters,” he said.

Updated below

US law provides temporary protected status (TPS) for certain foreign nationals in the United States who are fleeing armed conflict, natural disaster or other extreme circumstances in their native country.

But many refugees who have been granted such temporary status may soon have it revoked.

“The United States currently provides TPS to approximately 437,000 foreign nationals from 10 countries,” according to a newly updated report from the Congressional Research Service. Those countries are: El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria, and Yemen. See Temporary Protected Status: Overview and Current Issues, updated November 2, 2017.

Unless renewed, TPS for persons from Haiti, Honduras and Nicaragua will expire in January 2018. The Washington Post reported that the Department of Homeland Security is expected to announce today that the expiring protections will not be renewed.

Update: The Department of Homeland Security announced on November 6 that Temporary Protected Status for Nicaraguan refugees will be revoked effective January 5, 2019. The TPS designation for Honduras has been extended for further review until July 5, 2018.

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

El Salvador: Background and U.S. Relations, updated November 3, 2017

Clearing the Air on the Debt Limit, November 2, 2017

Public Private Partnerships (P3s) in Transportation, November 2, 2017

A Second Amendment Right to Sell Firearms? The Ninth Circuit, Sitting En Banc, Weighs In., CRS Legal Sidebar, November 2, 2017

Changes in the Arctic: Background and Issues for Congress, updated November 2, 2017

The National Science Foundation: FY2018 Appropriations and Funding History, November 2, 2017

“I hate the stuff that shows up in the press,” said Gen. John E. Hyten, commander of U.S. Strategic Command, at a congressional hearing on nuclear deterrence last March, the record of which has just been published.

Gen. Hyten was responding to a question from Rep. Austin Scott (R-GA) about the volume of unclassified information that gets released concerning the Ground-Based Strategic Deterrent (GBSD).

“General Hyten, we have seen a lot of GBSD acquisition details loaded into unclassified acquisition databases and run by the Air Force,” said Rep. Scott. “We all know that Russia, China, and others scoop all this stuff up to the best of their abilities and analyze it intensively.”

“Why is all of this put out in the open? Should we reassess what is unclassified in these acquisition documents?” Rep. Scott wanted to know.

“I hate the stuff that shows up in the press,” Gen. Hyten replied. “I think we should reassess that.”

“Just to complete that thought, I hate the fact that cost estimates show up in the press as well,” he added. “So I would really like to figure out a different way to do business than that. I hate seeing that kind of information in the newspaper.”

See Military Assessment of Nuclear Deterrence Requirements, hearing before the House Armed Services Committee, March 8, 2017.

In answer to another question at the hearing, Gen. Hyten denied that US nuclear forces are on “hair trigger alert.”

“Our nuclear command and control system is constantly exercised to ensure that only the President, after consultations with his senior advisors and military leaders, can authorize any employment of our nuclear forces,” he said.

On the other hand, Gen. Paul Selva, Vice Chair of the Joint Chiefs of Staff, said that the time available for a President to make a decision about a nuclear strike could be highly compressed depending on the scenario.

“The launch-on-warning criteria basically are driven by physics,” he said at the hearing. “The amount of time the President has to make a decision is based on when we can detect a launch [and] what it takes to physically characterize the launch.”

“I don’t believe the physics let us give him much more time,” Gen. Selva said.

North Korea’s rapidly maturing nuclear weapons and intercontinental ballistic missile programs have prompted urgent reconsideration of what to do about them.

A new report from the Congressional Research Service identifies and examines seven possible directions for US policy, none of them risk-free or altogether satisfactory:

*    maintaining the military status quo
*    enhanced containment and deterrence
*    denying DPRK acquisition of delivery systems capable of threatening the US
*    eliminating ICBM facilities and launch pads
*    eliminating DPRK nuclear facilities
*    DPRK regime change
*    withdrawing U.S. military forces

For a copy of the 67-page report (which was first reported by Bloomberg News), see The North Korean Nuclear Challenge: Military Options and Issues for Congress, October 27, 2017.

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

Niger: Frequently Asked Questions About the October 2017 Attack on U.S. Soldiers, October 27, 2017

Taiwan: Issues for Congress, October 30, 2017

Doing Business with Iran: EU-Iran Trade and Investment Relations, CRS Insight, October 25, 2017

Renegotiating NAFTA and U.S. Textile Manufacturing, October 30, 2017

The Vacancies Act: A Legal Overview, October 30, 2017

Department of Health and Human Services Halts Cost-Sharing Reduction (CSR) Payments, CRS Legal Sidebar, October 26, 2017

GAO Issues Opinions on Applicability of Congressional Review Act to Two Guidance Documents, CRS Insight, October 25, 2017

Treasury Proposes Rule That Could Deliver a “Death Sentence” to Chinese Bank, CRS Legal Sidebar, October 30, 2017