The effort to establish a uniform policy for Controlled Unclassified Information (CUI) is meeting opposition from some executive branch agencies who see it as unnecessary and unwelcome.

CUI refers to information that is unclassified but that requires protection for reasons other than national security– such as privacy, proprietary concerns, law enforcement sensitivity, and so on. In past years, more than 100 separate and sometimes conflicting policies for such information were put in place. The CUI program, established by President Obama’s executive order 13556 in 2010, was intended to simplify, standardize and streamline that profusion of security policies for unclassified information.

Some agencies, like Veterans Affairs and the Social Security Administration, are moving forward to adopt the new CUI policy.

Others, however, are not.

Earlier this month, officials from several large agencies — including CIA, DOJ, DHS and DOD — raised a whole series of objections to the CUI program in a letter to the Information Security Oversight Office (ISOO).

The officials contended in the undisclosed letter that there are several unresolved issues that must be addressed before CUI implementation can go forward. These are said to include inadequately defined governance of the program, financial costs thought to be in the billions of dollars, gaps in coverage affecting certain types of information, and commingling of CUI and classified information that will make proper marking of documents excessively long and complicated.

But ISOO director Mark Bradley said that these issues had either already been addressed or could be resolved. He said ISOO would prepare a formal response to the agency complaints.

Another point of contention is the impact of the CUI policy on government transparency and whether it will enhance or impede public access to unclassified information.

One of the original objectives of the CUI program was to reduce controls on unclassified information by limiting their use only to those instances where they were required by law, regulation or agency-specific policy. Arbitrary or improvised prohibitions on disclosure (such as the open-ended “for official use only”) would be not be authorized.

But in a privately circulated white paper, former CIA classification official Harry Cooper said that the CUI approach would lead to more government secrecy, not less.

Cooper noted that there were now some 129 authorized categories and subcategories that could be used to withhold information as CUI based on more than 400 laws and regulations. (Agencies had originally submitted more than 2,200 proposed CUI categories and subcategories.) As recently as September 25, a new CUI subcategory was added for “Intelligence-Internal Data” to cover various types of unclassified CIA information that is “not intended to be disseminated beyond CIA channels” including names, titles, salaries, and more.

“The full implementation of CUI will likely cause an expansion of the use of [FOIA exemption] (b)(3) and as a result information that would have been released prior to CUI will now be protected from release,” Cooper wrote. “Without CUI there is no marking to identify specific laws blocking access and government reviewers often missed those obscure laws that could potentially block access.” See Controlled Unclassified Information: Government Bureaucracy Out of Control by Harry Cooper, July 2017.

ISOO director Mark Bradley disputed Cooper’s critique. He said that the CUI categories and subcategories are not equivalent to FOIA exemptions. And the CUI implementing directive makes it clear, he said, that CUI markings are not to be used as a basis for rendering FOIA decisions.

Bradley said that the CUI program should result in an increase in transparency by excluding unauthorized controls on information and by exposing the CUI decision-making process to public scrutiny. He noted that some agencies had urged that the CUI Registry — which lists all of the CUI categories and subcategories — should not be a public document. But that view was rejected by ISOO, especially since the contents of the Registry refer to public laws and regulations.

CUI has roots in the Obama Administration’s executive order 13556, and even further back in a 2008 memorandum from President Bush. So it is conceivable that the CUI policy could be modified or abolished by the Trump Administration.

But in a September 8 memo to agency heads on unauthorized disclosures, national security advisor H.R. McMaster referred to “the importance of protecting classified and controlled unclassified information” — which was understood as a White House endorsement of the CUI construct.

In the meantime, CUI is entering the implementation phase, ISOO director Bradley said. “It’s not going to go away. It’s not going to be reversed.”

It is entirely possible that there will be unintended consequences from CUI implementation, he allowed in an interview last week, “but we will deal with them. As we find problems, we will fine-tune and adjust.”

The Department of Defense has spent more than $1.46 trillion for direct war-related costs since September 11, 2001, according to the latest Pentagon tabulation of war costs obtained by Secrecy News.

The 74-page DoD report provides extensive and detailed reporting on war-related appropriations and expenditures. See Cost of War Update as of June 30, 2017.

Some previous iterations of the cost of war report can be found here.

The current total includes $83 billion in classified spending, the new DoD report said. But it does not include “non-DoD classified programs” such as those conducted by the Central Intelligence Agency.

“War-related costs” are understood to refer to include military operational costs, support for deployed troops, and transportation of personnel and equipment. The term does not extend to indirect costs such as veterans’ benefits, long-term health care for injured personnel, reconstruction or post-conflict stabilization programs.

When such broader costs are included, the total expenditures surpassed $1.6 trillion in 2014, according to a report from the Congressional Research Service. Others put total costs much higher.

The American Revolution cost the equivalent of $2.4 billion today, according to another CRS estimate, while World War II cost around $4 trillion.

President Trump will declare the escalating number of drug deaths from opioids as a “public health emergency” — but not a “national emergency” — in an announcement scheduled for today.

The Congressional Research Service has issued a new report on aspects of the problem, including an overview of opioid abuse, a review of opioid supply, and a survey of federal programs that deal with the issue. See The Opioid Epidemic and Federal Efforts to Address It: Frequently Asked Questions, October 18, 2017.

On the origins of the crisis, see “The Family That Built an Empire of Pain” by Patrick Radden Keefe, The New Yorker, October 30, 2017.

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

Poverty in the United States in 2016: In Brief, October 25, 2017

EPA Proposes to Repeal the Clean Power Plan, CRS Legal Sidebar, October 25, 2017

Civilian Nuclear Waste Disposal, updated October 23, 2017

Gun Control: Silencers under the Hearing Protection Act (H.R. 3668), CRS Insight, October 16, 2017

Tracking Federal Funds: USAspending.gov and Other Data Sources, updated October 24, 2017

Human Trafficking: New Global Estimates of Forced Labor and Modern Slavery, CRS Insight, October 18, 2017

U.S. Withdrawal from the United Nations Educational, Scientific and Cultural Organization (UNESCO), CRS Insight, October 17, 2017

Overview of “Travel Ban” Litigation and Recent Developments, CRS Legal Sidebar, October 23, 2017

Iran Policy and the European Union, CRS Insight, updated October 18, 2017

States’ Obligations Under Additional Protocols to IAEA Comprehensive Safeguards Agreements, CRS memorandum, October 23, 2017

Some restrictions on U.S. arms sales to human rights violators in the Middle East have recently been relaxed by the Trump Administration, a new report from the Congressional Research Service noted.

“In early 2016, Bahrain submitted a request to purchase a number of F-16s [from the U.S.] and to upgrade its existing aircraft in a deal worth as much as $4 billion. However, when the Obama Administration informally pre-notified the sale to Congress, it explained that the sale would not move forward unless Bahrain took steps toward improving its record on human rights. The Trump Administration dropped those conditions in March 2017, even though U.N. investigators have asserted a ‘sharp deterioration’ of human rights over the past year in Bahrain. Congress was formally notified of the sale in September 2017.”

The use of self-imposed U.S. restriction on arms sales “as a mechanism to achieve changes in [foreign] behavior has questionable effectiveness and can have unintended consequences,” said CENTCOM Commander Gen. Joseph L. Votel in Senate testimony quoted by CRS. “We should avoid using the programs as a lever of influence or denial to our own detriment.”

The new CRS report describes and analyzes arms sales to seven Middle Eastern countries.

“The United States is the single largest arms supplier to the Middle East and has been for decades. However, other major producers like Russia, France, and China are also key players in the region. Their respective strategies and goals for arms sales appear to differ in some ways,” the report said.

See Arms Sales in the Middle East: Trends and Analytical Perspectives for U.S. Policy, October 11, 2017.

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

The Committee on Foreign Investment in the United States (CFIUS), updated October 11, 2017

NAFTA Renegotiation and Modernization, October 12, 2017

Defense Primer: Military Pay Raise, CRS In Focus, updated October 10, 2017

The Army’s Warfighter Information Network-Tactical (WIN-T) Program, CRS Insight, October 10, 2017

U.S. Periods of War and Dates of Recent Conflicts, updated October 11, 2017

Instances of Use of United States Armed Forces Abroad, 1798-2017, updated October 12, 2017

Updated below

Four months after President Trump issued his National Security Presidential Memorandum 5 on US policy towards Cuba and ordered it to be published in the Federal Register, that has still not been accomplished.

The Memorandum, posted on the White House web site on June 16, states that “The Secretary of State is hereby authorized and directed to publish this memorandum in the Federal Register.”

That was never done. Why not?

The State Department says it did not receive the Cuba directive in the proper form.

“The Federal Register requires the signed original be submitted for publication,” a State Department spokesman said last week. “The Department of State does not yet have the original document. We refer you to the White House for further information.”

For its part, the White House said the State Department spokesman was misinformed, that a certified copy had been promptly delivered to the executive secretariat within the Office of the Secretary of State, and that the document was ripe for publication in the Federal Register.

The fact remains that four months after its issuance NSPM 5 has yet to appear in the Federal Register as ordered by the President.

That kind of delay in publication is unusual. The previous National Security Presidential Memorandum, NSPM 4, was issued on April 4, 2017, and it was published in the Federal Register two days later on April 6.

What’s even more peculiar is that the whole notion of publishing the directives in the Federal Register seems to be based on a misunderstanding.

Prior to the Trump Administration, national security directives were never published in the Federal Register. But because the Trump directives were styled as “National Security Presidential Memoranda” it appears that they were drafted by White House officials using a template for ordinary (non-national security) “presidential memoranda,” which are routinely published in the Federal Register every few days.

Perhaps belatedly recognizing that fact, the latest NSPM 7 on “Integration, Sharing, and Use of National Security Threat Actor Information to Protect Americans” that was issued on October 4 and posted on the White House website is the first unclassified Trump NSPM that does not mandate publication in the Federal Register. (A classified annex to NSPM 7 listing attributes of “national security threat actors” was not released.) [Correction 10/16/17: Though initially withheld, the annex to NSPM 7 is unclassified and has been appended to the document posted on the White House website.]

Meanwhile, the sequential gap between NSPM 5 and NSPM 7 points to the existence of an NSPM 6. It is a classified document that has not been disclosed.

The Washington Post reported on September 30 that “Trump signed [a] presidential directive ordering actions to pressure North Korea.” But as far as could be determined, that reported directive was not NSPM 6 and apparently was not a “National Security Presidential Memorandum” at all, raising the possibility that the Trump White House is using some other yet-unidentified instrument of presidential authority to implement national security policy.

Update 10/20/17: NSPM 5 was published in the Federal Register on October 20, 2017.

What constitutes an act of war in the cyber domain?

It’s a question that officials have wrestled with for some time without being able to provide a clear-cut answer.

But in newly-published responses to questions from the Senate Armed Services Committee, the Pentagon ventured last year that “The determination of what constitutes an ‘act of war’ in or out of cyberspace, would be made on a case-by-case and fact-specific basis by the President.”

“Specifically,” wrote then-Undersecretary of Defense (Intelligence) Marcel Lettre, “cyber attacks that proximately result in a significant loss of life, injury, destruction of critical infrastructure, or serious economic impact should be closely assessed as to whether or not they would be considered an unlawful attack or an ‘act of war.'”

Notably absent from this description is election-tampering or information operations designed to disrupt the electoral process or manipulate public discourse.

Accordingly, Mr. Lettre declared last year that “As of this point, we have not assessed that any particular cyber activity [against] us has constituted an act of war.”

See Cybersecurity, Encryption and United States National Security Matters, Senate Armed Services Committee, September 13, 2016 (published September 2017), at p. 85.

See related comments from Joint Chiefs Chairman Gen. Joseph Dunford in U.S. National Security Challenges and Ongoing Military Operations, Senate Armed Services Committee, September 22, 2016 (published September 2017), at pp. 56-57.

In January 2017, outgoing Obama DHS Secretary Jeh Johnson for the first time designated the U.S. election system as critical infrastructure. “Given the vital role elections play in this country, it is clear that certain systems and assets of election infrastructure meet the definition of critical infrastructure, in fact and in law,” he wrote. It follows that an attack on the electoral process could now be considered an attack on critical infrastructure and, potentially, an act of war.

“Russia engaged in acts of war against America, not with bullets and bombs, but through a modern form of warfare, a cyberattack on our democracy,” opined Allan Lichtman, a history professor at American University, in a letter published in the latest issue of the New York Review of Books.

Not so fast, replied Noah Feldman and Jacob Weisberg: “The US is not now in a legal state of war with Russia despite that country’s attempts to affect the 2016 election.”

The current issue of the US Army’s Military Intelligence Professional Bulletin (Oct-Dec 2017) includes an article on Recommendations for Intelligence Staffs Concerning Russian New Generation Warfare by MAJ Charles K. Bartles (at pp. 10-17).

The nominal deadline for release of the last remaining records concerning the assassination of President Kennedy under the terms of the JFK Assassination Records Collection Act of 1992 is October 26, 2017.

Agencies have an opportunity to request postponement of release, beyond the deadline, of a few thousand records that are still being withheld, subject to Presidential approval. Officials would not say if any such requests have been forwarded to the White House, but so far none are known to have been approved by President Trump.

In a resolution introduced in the Senate last week, Senators Charles Grassley and Patrick Leahy called for full release of all remaining assassination records.

They urged the President of the United States to “reject any claims for the continued postponement of the full public release of those records.”

Further background from the Congressional Research Service can be found in President John F. Kennedy Assassination Records Collection: Toward Final Disclosure of Withheld Records in October 2017, CRS Insight, May 26, 2017.

The Trump Administration budget request proposes a substantial cut to US spending on global health programs, as described in a new report from the Congressional Research Service. But Congress appears poised to provide at least some of the funds that the executive branch had sought to eliminate.

“The FY2018 budget request includes almost $7 billion for global health assistance, roughly 30% less than the FY2017-enacted level,” CRS noted.

“The budget request proposes halving the USAID global health budget through the elimination of funding for global health security, vulnerable children, and family planning and reproductive health. Budget reductions are also recommended for all other health programs,” including various programs to combat infectious diseases around the world.

The US is the largest contributor to international health programs. But according to the Trump budget request, “other stakeholders must do more to contribute their fair share to global health initiatives.” See U.S. Global Health Assistance: FY2001-FY2018 Request, updated October 6, 2017.

Other noteworthy new products from the Congressional Research Service include the following.

U.S. Response to Injuries of U.S. Embassy Personnel in Havana, Cuba, CRS Insight, October 6, 2017

Attack on U.S. Soldiers in Niger: Context and Issues for Congress, CRS Insight, October 5, 2017

Wildfire Suppression Spending: Background, Issues, and Legislation in the 115th Congress, October 5, 2017

Electoral College Reform: Contemporary Issues for Congress, updated October 6, 2017

Overview of Continuing Appropriations for FY2018 (P.L. 115-56), October 6, 2017

Kosovo: Background and U.S. Relations, October 6, 2017

Options to Cease Implementing the Iran Nuclear Agreement, updated October 5, 2017

Other nations, including current and potential adversaries, possess military capabilities that now match or exceed those of the United States, according to a new US Army doctrinal publication.

“Today’s operational environment presents threats to the Army and joint force that are significantly more dangerous in terms of capability and magnitude than those we faced in Iraq and Afghanistan. Major regional powers like Russia, China, Iran, and North Korea are actively seeking to gain strategic positional advantage. These nations, and other adversaries, are fielding capabilities to deny long-held U.S. freedom of action in the air, land, maritime, space, and cyberspace domains and reduce U.S. influence in critical areas of the world.”

“In some contexts they already have overmatch or parity, a challenge the joint force has not faced in twenty-five years.”

That assessment appears in the Foreword to the newly updated US Army Field Manual 3.0 on Operations that was officially released today.

The Field Manual describes the conduct of operations in the new environment, with notably new material on the cyber and space domains.

“Threat operations [by adversaries] in cyberspace are often less encumbered by treaty, law, and policy restrictions than those imposed on U.S. forces, which may allow adversaries or enemies an initial advantage,” the manual states.

The unclassified field manual was released along with two supporting volumes:

ADP 3-0. Operations, Army Doctrine Publication, October 2017, and

ADRP 3-0. Operations, Army Doctrine Reference Publication, October 2017

Last week, Secretary of Defense James Mattis issued a memorandum to all military personnel and DoD employees warning against leaks of classified or otherwise restricted defense information.

“It is a violation of our oath to divulge, in any fashion, non-public DoD information, classified or unclassified, to anyone without the required security clearance as well as a specific need to know in performance of their duties,” he wrote. A copy of the memo was obtained by Military Times. (A security clearance is not required for unclassified information.)

Yet also last week, Secretary Mattis himself disclosed new information that about US rules of engagement that is normally not published, the New York Times reported. A Pentagon spokesman denied that the disclosure would place US forces at risk, or help the enemy. See “Mattis Discloses Part of Afghanistan Battle Plan, but It Hasn’t Yet Been Carried Out” by Thomas Gibbons-Neff, October 6.

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

President Trump’s Proclamation on Enhanced Vetting of Foreign Nationals from Designated Countries, CRS Insight, September 29, 2017

Diversity, Inclusion, and Equal Opportunity in the Armed Services: Background and Issues for Congress, updated October 4, 2017

Navy Irregular Warfare and Counterterrorism Operations: Background and Issues for Congress, updated October 2, 2017

Iran: Politics, Human Rights, and U.S. Policy, updated October 3, 2017

Bahrain: Reform, Security, and U.S. Policy, updated September 29, 2017

Department of State, Foreign Operations, and Related Programs: FY2018 Budget and Appropriations, updated October 3, 2017

U.S. Role in the World: Background and Issues for Congress, updated October 3, 2017

The United Nations Human Rights Council: Issues for Congress, updated September 27, 2017

Libya: Transition and U.S. Policy, updated October 2, 2017

Navy Virginia (SSN-774) Class Attack Submarine Procurement: Background and Issues for Congress, updated October 4, 2017

Navy Columbia (SSBN-826) Class Ballistic Missile Submarine Program: Background and Issues for Congress, updated October 4, 2017

Navy DDG-51 and DDG-1000 Destroyer Programs: Background and Issues for Congress, updated October 3, 2017

Navy Littoral Combat Ship (LCS) Program: Background and Issues for Congress, updated October 3, 2017

The Blue Slip Process for U.S. Circuit and District Court Nominations: Frequently Asked Questions, October 2, 2017

U.S. Farm Income Outlook for 2017, October 4, 2017

Department of the Interior Secretarial Order 3356, CRS Insight, October 4, 2017

Abortion: Judicial History and Legislative Response, updated September 29, 2017

Economic Impact of Hurricanes Harvey and Irma, CRS Insight, October 2, 2017

Ethics Pledges and Other Executive Branch Appointee Restrictions Since 1993: Historical Perspective, Current Practices, and Options for Change, September 29, 2017

The U.S. Constitution does not mention immigration. But the Supreme Court has held that Congress has essentially complete (“plenary”) power to regulate immigration and that the executive branch has broad authority to enforce laws concerning alien entry to the US. In fact, as a new report from the Congressional Research Service explains, Congress can make laws concerning aliens that would be unconstitutional if applied to citizens.

Against this background, the Court’s temporary restriction of the Trump Administration’s power to exclude nonresident aliens abroad is “remarkable when compared with the Court’s earlier [consistently permissive] immigration jurisprudence,” CRS said.

The legal landscape upon which current immigration controversies are unfolding was described last week in Overview of the Federal Government’s Power to Exclude Aliens, September 27, 2017.

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

Privatization and the Constitution: Selected Legal Issues, September 25, 2017

Congress’s Power Over Courts: Jurisdiction Stripping and the Rule of Klein, September 26, 2017

Corporate Tax Reform: Issues for Congress, updated September 22, 2017

Potential Impacts of Uncertainty Regarding Affordable Care Act (ACA) Cost-Sharing Reduction Payments, CRS Insight, September 25, 2017

Federal Financing for the State Children’s Health Insurance Program (CHIP), updated September 29, 2017

Hurricanes Irma and Maria: Impact on Caribbean Countries and Foreign Territories, CRS Insight, September 28, 2017

National Flood Insurance Program Borrowing Authority, CRS Insight, September 22, 2017

The National Health Service Corps, September 27, 2017

Amtrak: Overview, September 28, 2017

Infantry Brigade Combat Team (IBCT) Mobility, Reconnaissance, and Firepower Programs, September 26, 2017

Navy Frigate (FFG[X]) Program: Background and Issues for Congress, September 28, 2017

Recent Developments in U.S. Aid to Egypt, CRS Insight, September 29, 2017

In an unusual assertion of congressional authority over national security classification policy, the Senate adopted a provision that would require the Secretary of Defense to declassify certain classified documents regarding military exposures to toxic releases.

The provision was authored by Senator Jerry Moran (R-Kan.) and was included in the Senate version of the National Defense Authorization Act for FY 18 (HR 2810, sect. 1089), which was passed in the Senate on September 18.

The measure directs that “The Secretary of Defense shall declassify documents related to any known incident in which not fewer than 100 members of the Armed Forces were exposed to a toxic substance that resulted in at least one case of a disability.”

Though limited in scope and application, the provision is noteworthy because it does not simply declare a “sense of Congress” in favor of declassification or call for a “review” of classified records. It actually requires declassification to be performed.

The Moran legislation, co-sponsored by Sen. Jon Tester (D-Mont.), does allow for the possibility of exemption of some material from declassification, but only if it would “materially and immediately threaten the security of the United States.”

That is a far more stringent standard than is provided by the executive order on classification, which vaguely permits withholding of information whenever it “could be expected to cause damage to the national security.”

In effect, the Senate bill overrides the executive order with respect to the specified documents on toxic exposures by mandating declassification with new, narrower criteria for withholding.

This is not the first time that Congress has enacted such a legislative override of classification policy. It did so, most notably, in the JFK Assassination Records Collection Act of 1992. Some other attempts to legislate a new standard for declassification were initiated but did not advance into law, as in the case of the Human Rights Information Act.

Though rare, successful legislative action of this kind demonstrates that Congress can be an effective participant in determining the scope and performance of the classification system. More than that, Congress has the power to help to correct errors and abuses in classification policy.

This is one of those cases where congressional intervention was necessary, according to Sen. Moran.

“Without declassification of these documents, many of our veterans are left without proof of the exposure they suffered, preventing them from being able to establish their service-connected conditions and secure a disability rating that makes them eligible to receive the care and benefits they deserve to help them cope with the residual health damage,” his office said in a news release.