The problem of “domestic terrorism” is examined in a new report from the Congressional Research Service, along with an assessment of the government’s difficulty in addressing it.

“Since the terrorist attacks of September 11, 2001 (9/11), domestic terrorists–people who commit crimes within the homeland and draw inspiration from U.S.-based extremist ideologies and movements–have not received as much attention from federal law enforcement as their violent jihadist counterparts,” the report says.

Among other obstacles to an effective response, “The federal government lacks a process for publicly designating domestic terrorist organizations.” See Domestic Terrorism: An Overview by CRS Specialist Jerome P. Bjelopera, August 21, 2017.

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

Confederate Names and Military Installations, CRS Insight, August 22, 2017

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

Human Rights in China and U.S. Policy: Issues for the 115th Congress, July 17, 2017

North Korean Cyber Capabilities: In Brief, August 3, 2017

Justice Department’s Role in Cyber Incident Response, August 23, 2017

Office of Science and Technology Policy (OSTP): History and Overview, updated August 17, 2017

Remedies for Patent Infringement, July 18, 2017

Russia: Background and U.S. Interests, updated August 21, 2017

One of the innovations in the current executive order on national security classification, issued by President Obama in 2009, was to require agencies to perform a periodic review of all classification guidance to ensure that it is current, threat-based, and otherwise appropriate.

The second such Fundamental Classification Guidance Review (FCGR) has recently been completed with modest but positive results, as reported to the Information Security Oversight Office.

The Department of the Navy, for example, said that it had “achieved a reduction in the number of SCGs [security classification guides] from 936 to 421 or 55%, as a result of the FCGR.”

DARPA cancelled 29 of the 189 classification guides it reviewed. The Army eliminated 77 out of 486 guides.

Meanwhile, the Office of the Director of National Intelligence “[reduced] the number of restrictive NOFORN decisions from 95 to 15″ and declassified the “fact of” a specific counterterrorism network platform.

The Central Intelligence Agency “determined that the existing CIA National Security Classification Guide (NSCG) required greater detail to assist derivative classifiers in identifying and protecting information appropriately.” (More detail should lead to narrower, more precise classification judgments.)

The Defense Intelligence Agency said it will reduce the number of “original classification authorities” in the Agency who are empowered to create new secrets from 147 down to 21.

By themselves, the reported revisions to classification guidance are not likely to yield new public disclosures. In most cases, the cancelled classification guides were eliminated not because their subject matter was declassified but because they pertained to programs that were terminated or to technologies that were no longer in use.

In other words, the secrecy review was essentially performed as a housekeeping measure, to eliminate obsolete guidance and to streamline operations. It does not imply a broader transformation of classification policy.

Yet the fact remains that the cancelled guides can no longer be used to justify classification. Moreover, the review process entailed a wholesome reconsideration of the basis for current classification instructions that may have broader repercussions.

Following the first Fundamental Review in 2012, the total numbers of new secrets (“original classification decisions”) created by agencies in the last three years (2014-2016) have been the lowest ever reported by the Information Security Oversight Office.

This apparent reduction in the scale of national security secrecy is at odds with the view that government secrecy inexorably expands, that Obama-era secrecy was as extensive or even broader than that of the Bush Administration, and that agencies have no real incentives to reduce secrecy. Evidently, they do have such incentives, including the avoidance of financial and operational costs, the need to facilitate information sharing, and the obligation to comply with bureaucratic requirements (such as the FCGR) that may be imposed by senior leadership.

(It is possible that the reduction is merely apparent and not real. A retired intelligence community classification official said that the data on annual classification activity reported by agencies and compiled by ISOO is hopelessly inaccurate and does not correspond to actual classification practice at all. Consequently, he said, it cannot serve as the basis for any analytic conclusion or policy response. Maybe so. But assuming that the flimsiness of the data is roughly constant from year to year, the fact that the reported totals have declined sharply may still be meaningful.)

A detailed analysis of the 2017 Fundamental Classification Guidance Review will be provided by ISOO director Mark Bradley in the forthcoming FY 2018 Annual Report to the President.

Decreasing IC Classification Activities

Last year, then-DNI James Clapper asked Intelligence Community agency heads to use the occasion of the Fundamental Classification Guidance Review “to take a leading role in reducing targeted classification activities” and to answer several specific questions that he posed in a March 23, 2016 memo.

Last month, DNI Dan Coats provided the IC agency answers to Clapper’s questions. He reported:

*    Most IC agencies believe they can reduce the number of IC officials who have original classification authority, thereby helping to constrain future classification activity.

*    Agencies are split on the feasibility of undertaking new discretionary declassification activities. Some said they were already doing what they can, and others said current resources would not support new declassification initiatives.

*    The Confidential classification level can and probably will be eliminated from IC classification guidance, simplifying and streamlining the system. However, while some currently Confidential material would be downgraded to Unclassified, other such information will be upgraded to Secret.

*    An IC-wide classification guide may be achievable but only for certain common functions including intelligence budgeting and counterintelligence.

IG Studies on Classification Policy

The FY 2018 Intelligence Authorization Act that is pending in the Senate would require intelligence agency inspectors general to perform three studies on classification policy (section 308) including:

*    a review of classification marking practices

*    a study analyzing intelligence agency compliance with declassification procedures

*    a study on processes for identifying intelligence topics of public or historical importance that should be prioritized for declassification review.

The House Armed Services Committee took a retrospective look at US special operations forces earlier this year, thirty years after the establishment of US Special Operations Command (SOCOM).

“SOCOM has a lot of missions it is responsible for, and has had several new ones added to it,” said Rep. Elise M. Stefanik (R-NY) at a hearing earlier this year. “Are there any of those missions that should go away or be reassigned?”

SOCOM Commander Gen. Raymond A. Thomas was ready with the answer: “There are no missions that should go away or be reassigned.”

See Three Decades Later: A Review and Assessment of our Special Operations Forces 30 Years After the Creation of U.S. Special Operations Command, House Armed Services Committee, May 2, 2017.

Some other notable congressional hearing volumes that have recently been published include:

Crafting an Information Warfare and Counter-propaganda Strategy for the Emerging Security Environment, House Armed Services Committee, March 15, 2017

Examining the Costs of Overclassification on Transparency and Security, House Oversight and Government Reform Committee, December 7, 2016

When President Trump issued a National Security Presidential Memorandum (NSPM) on US policy towards Cuba on June 16, he included a provision ordering that it be published in the Federal Register: “The Secretary of State is hereby authorized and directed to publish this memorandum in the Federal Register.”

Now, more than two months later, the document has still not appeared in the Federal Register. (Previous memoranda in this series were all published in the Federal Register less than a week after they were signed by the President.)

Since the text of the Cuba NSPM has already been posted on the White House website (though without its identifying number NSPM-5), it is not a secret. And in the larger scheme of things, failing to publish it in the Federal Register is no great dereliction of duty.

But it indicates a glitch in the machinery of government in this Administration. When the President directs a subordinate to carry out an action, no matter how trivial, it is supposed to be carried out. That did not happen here.

For some reason, the gears in this Administration are not turning normally and predictably. Even easy things are not consistently getting done.

Why not?

In response to our inquiry, the State Department offered not an explanation for the delay but only an affirmation that the Department still plans to publish the Presidential memo in the Federal Register. Sometime.

In response to congressional direction, the Department of Defense is planning to divide its existing defense acquisition office into two separate organizations. The change, which would take effect in February 2018, is predicated on the belief that it would promote technological innovation and increase efficiency.

A new report from the Congressional Research Service provides background on the move. See DOD Plan to Split Acquisition Duties, CRS Insight, August 18, 2017.

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

Select Acquisition Reform Provisions in the House and Senate Versions of the FY2018 National Defense Authorization Act, August 21, 2017

Who Regulates Whom? An Overview of the U.S. Financial Regulatory Framework, August 17, 2017

Select Demographic and Other Characteristics of Recent U.S. Circuit and District Court Nominees, CRS Insight, August 17, 2017

The United Arab Emirates (UAE): Issues for U.S. Policy, updated August 18, 2017

U.S. Role in the World: Background and Issues for Congress, updated August 17, 2017

China Naval Modernization: Implications for U.S. Navy Capabilities — Background and Issues for Congress, updated August 18, 2017

Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China: Issues for Congress, updated August 17, 2017

Comparing DHS Component Funding, FY2018: In Brief, August 21, 2017

Violence Against Members of Congress and Their Staff: Selected Examples and Congressional Responses, updated August 17, 2017

The car attack in Charlottesville that killed Heather Heyer and wounded many others has already been charged by the State of Virginia as a case of second degree murder. But the attack may also end up as a federal case, particularly since Attorney General Sessions announced a federal investigation into the matter last Monday.

“For both constitutional and practical reasons, law enforcement is first and foremost a state responsibility,” a new CRS brief explains. “Nevertheless, the protection of civil rights has been thought to be an important federal concern.”

“It’s too early to tell what, if any, prosecutable federal offenses the Justice Department’s investigation might discover. However, various civil rights and terrorist offenses may be implicated.” The CRS brief surveys potential federal crimes that might have been committed in the Charlottesville case, including domestic terrorism and civil rights violations.

“There is no constitutional impediment to both state and federal prosecution for the same misconduct, although prosecution in both forums occurs only infrequently.” See Charlottesville Car Crash Attack: Possibility of Federal Criminal Prosecution, CRS Legal Sidebar, August 15, 2017.

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

Sifting Domestic Terrorism from Hate Crime and Homegrown Violent Extremism, CRS Insight, August 14, 2017

For First Time, FinCEN Imposes Penalty on Foreign-Based Virtual Currency Exchange for Violations of Anti-Money Laundering Laws, CRS Legal Sidebar, August 17, 2017

Foreign Money and U.S. Elections, CRS Legal Sidebar, August 17, 2017

Medicare: Insolvency Projections, updated August 16, 2017

Inspector General Community Launches Oversight.gov to Increase Accessibility to Reports, CRS Insight, August 15, 2017

Trespassing: The Leading Cause of Rail-Related Fatalities, CRS Insight, August 15, 2017

EPA’s 2015 Ozone Air Quality Standards, updated August 15, 2017

The Net Neutrality Debate: Access to Broadband Networks, updated August 15, 2017

The Debt Limit Since 2011, updated August 9, 2017

Productivity Growth Across the Economy, CRS Insight, August 8, 2017

Trump Administration Releases First Unified Agenda of Federal Regulatory and Deregulatory Actions, CRS Insight, August 7, 2017

U.S. Circuit and District Court Judges: Profile of Select Characteristics, updated August 1, 2017

Global Engagement Center: Background and Issues, CRS Insight, August 4, 2017

Armed Conflict in Syria: Overview and U.S. Response, updated August 10, 2017

Yemen: Cholera Outbreak, CRS Insight, August 2, 2017

China-India Border Tensions at Doka La, CRS Insight, August 9, 2017

Paris Agreement on Climate Change: U.S. Letter to United Nations, CRS Insight, August 8, 2017

The Open Skies Treaty: Issues in the Current Debate, CRS Insight, August 10, 2017

Navy Littoral Combat Ship/Frigate (LCS/FFGX) Program: Background and Issues for Congress, updated August 11, 2017

Coast Guard Polar Icebreaker Modernization: Background and Issues for Congress, updated August 15, 2017

Navy Columbia Class (Ohio Replacement) Ballistic Missile Submarine (SSBN[X]) Program: Background and Issues for Congress, updated August 8, 2017

Navy Aegis Ballistic Missile Defense (BMD) Program: Background and Issues for Congress, updated August 14, 2017

The Trump Administration budget request would cut federal spending on research and development in every major agency except for the Department of Defense and Veterans Affairs, the Congressional Research Service said yesterday in a new report.

“Nearly every federal agency would see its R&D funding decrease under the President’s FY2018 request compared to their FY2016 levels,” the CRS report said.

“The largest declines (as measured in dollars) would occur in the budgets of HHS (down $6.099 billion, 18.9%), DOE (down $1.809 billion, 11.9%), USDA (down $666 million, 25.1%), NSF (down $639 million, 10.6%), and the EPA (down $239 million, 46.3%).”

Federal R&D is generally understood to provide support for scientific, medical, military and other research of economic, social, security or other value that would not normally be undertaken by the private sector. Reducing R&D therefore means foregoing the benefits that might otherwise accrue from such investment.

CRS noted that the Trump budget request is “largely silent” on funding for existing multiagency R&D initiatives such as the National Nanotechnology Initiative, Networking and Information Technology Research and Development program, U.S. Global Change Research Program, Brain Research through Advancing Innovative Neurotechnologies (BRAIN) initiative, Precision Medicine Initiative, Cancer Moonshot, Materials Genome Initiative, National Robotics Initiative, and National Network for Manufacturing Innovation. The future of these programs, some of which have a statutory basis, is left uncertain in the Administration budget request.

However, the budget request is the first word, not the last word, in the budgeting process.

“Congress may opt to agree with none, part, or all of the request, and it may express different priorities through the appropriations process,” CRS said. “In particular, Congress will play a central role in determining the allocation of the federal R&D investment in a period of intense pressure on discretionary spending.”

See Federal Research and Development Funding: FY2018, July 31, 2017.

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

Bail: An Overview of Federal Criminal Law, updated July 31, 2017

The Federal Communications Commission: Current Structure and Its Role in the Changing Telecommunications Landscape, updated July 28, 2017

Ongoing Section 232 Steel and Aluminum Investigations, CRS Insight, July 28, 2017

In Brief: Highlights of FY2018 Defense Appropriations Actions, July 31, 2017

NAFTA and Motor Vehicle Trade, July 28, 2017

Rwanda’s August 4 Presidential Election, CRS Insight, July 31, 2017

Honduras: Background and U.S. Relations, updated July 28, 2017

U.S. Petroleum Trade with Venezuela: Financial and Economic Considerations Associated with Possible Sanctions, CRS Insight, July 27, 2017

Afghanistan: Post-Taliban Governance, Security, and U.S. Policy, updated July 24, 2017

The Trump Administration budget request for FY 2018 would “severely reduce” Energy Department funding for development of carbon capture and sequestration technologies intended to combat the climate change effects of burning fossil fuels.

The United States has “more than 250 years’ worth of clean, beautiful coal,” President Trump said last month, implying that remedial measures to diminish the environmental impact of coal power generation are unnecessary.

Research on the carbon capture technology that could make coal use cleaner by removing carbon dioxide from power plant exhaust would be cut by 73% if the Trump Administration has its way.

“The Trump Administration’s approach would be a reversal of Obama Administration and George W. Bush Administration DOE policies, which supported large carbon-capture demonstration projects and large injection and sequestration demonstration projects,” the Congressional Research Service said this week in a new report.

“We have finally ended the war on coal,” President Trump declared.

However, congressional approval of the Administration’s proposal to slash carbon capture and sequestration (CCS) development is not a foregone conclusion.

“The House Appropriations Committee’s FY2018 bill funding DOE disagrees with the Administration budget request and would fund CCS activities at roughly FY2017 levels,” the CRS report said.

“This report provides a summary and analysis of the current state of CCS in the United States.” It also includes a primer on how CCS could work, and a profile of previous funding in this area. See Carbon Capture and Sequestration (CCS) in the United States, July 24, 2017.

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

Methane and Other Air Pollution Issues in Natural Gas Systems, updated July 27, 2017

The U.S. Export Control System and the Export Control Reform Initiative, updated July 24, 2017

Base Erosion and Profit Shifting (BEPS): OECD Tax Proposals, July 24, 2017

Oman: Reform, Security, and U.S. Policy, updated July 25, 2017

Lebanon, updated July 25, 2017

Aviation Bills Take Flight, but Legislative Path Remains Unclear, CRS Insight, July 25, 2017

Military Officers, CRS In Focus, July 3, 2017

Military Enlisted Personnel, CRS In Focus, July 3, 2017

Transgender Servicemembers: Policy Shifts and Considerations for Congress, CRS Insight, July 26, 2017

Systematic, authorized publication of CRS reports on a government website came a step closer to reality yesterday when the Senate Appropriations Committee voted to approve “a provision that will make non-confidential CRS reports available to the public via the Government Publishing Office’s website.”

By its actions and its refusals to act, the Trump Administration is changing the profile of the United States in global affairs.

Whether demonstrating disdain for longtime allies, disrupting diplomatic relationships and international agreements, or cultivating ties with authoritarian figures in Russia and elsewhere, President Trump seems to be radically altering the character and meaning of American foreign policy. But to what end?

A new report from the Congressional Research Service tries to sort through the situation, and to advise Congress on its options under the circumstances.

For the last 70 years, the U.S. has sought “to promote and defend the open international order that the United States, with the support of its allies, created in the years after World War II,” according to CRS. That may no longer be the case.

But exactly how the direction of U.S. policy is changing, whether it should change, and what it should change to are all subject to dispute. The new CRS report, by specialists Ronald O’Rourke and Michael Moodie, presents the fundamental policy questions on a fairly abstract level, without mentioning Putin, Merkel, Duterte, or other leaders with whom the Trump Administration has acted to modify U.S. relations.

See U.S. Role in the World: Background and Issues for Congress, July 12, 2017.

Scorning multilateral trade agreements, the Trump Administration risks diminishing the U.S. role in setting the rules for international trade, another new CRS publication said. A pending Free Trade Agreement between the European Union and Japan could also work to the disadvantage of U.S. firms by “increas[ing] the relative price of U.S. goods and services exports to both the EU and Japan, lowering their competitiveness in key U.S. markets.” See The Proposed EU-Japan FTA and Implications for U.S. Trade Policy, CRS Insight, July 14, 2017.

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

Foreign Affairs Overseas Contingency Operations (OCO) Funding: Background and Current Status, CRS In Focus, July 19, 2017

Reform of U.S. International Taxation: Alternatives, updated July 21, 2017

Accounting and Auditing Regulatory Structure: U.S. and International, July 19, 2017

Economic Impact of Infrastructure Investment, July 18, 2017

Pending ACA Legal Challenges Remain as Congress Pursues Health Care Reform, CRS Legal Sidebar, updated July 13, 2017:

The Nuclear Ban Treaty: An Overview, CRS Insight, July 10, 2017

Last year executive branch agencies created the fewest new national security secrets ever reported, according to an annual report published today by the Information Security Oversight Office (ISOO).

The number of new secrets — or “original classification decisions” — was 39,240 in 2016, an all-time low. The previous low of 46,800 was set in 2014. By comparison, more than 230,000 new secrets a year were being generated a decade ago. Since such record-keeping began in 1980, the total number never dropped below 100,000 until 2012. See 2016 Annual Report to the President, Information Security Oversight Office, July 2017.

While interesting and welcome from an open government viewpoint, the reported reduction in new secrets cannot bear too much interpretive weight. The figures cited by ISOO represent a compilation of dozens of estimates provided by individual agencies, based on sampling methods that are inconsistent and not always reliable.

Moreover, this statistical approach to secrecy oversight implies that all classification decisions are of equal significance. In actuality, some secrets may be of profound importance — politically, morally, historically, or otherwise — while many other secrets (such as administrative or technical details) will have little or no public policy interest. A simple numerical count of the number of classification decisions does not capture their relative meaning or value.

Still, assuming that the uncertainties and the ambiguities in the data have been more or less constant over time, the reduction in new secrets to a record low level is likely to reflect a real reduction in the scope of national security secrecy in the Obama years.

Classification Costs at a Record High

Meanwhile, however, the annual costs incurred by the classification system reached record high levels in 2016, the ISOO report said.

“The total security classification cost estimate within Government for FY 2016 is $16.89 billion,” ISOO reported, compared to $16.17 billion the year before. Classification-related costs within industry were an additional $1.27 billion.

Classification Challenges

Because decisions to classify information often involve subjective judgments about the requirements of national security and the potential of particular information to cause damage, such decisions are sometimes disputed even within the government itself. The classification system allows for classification challenges to be filed by authorized holders of classified information who believe that the information is improperly classified.

Last year, there were 954 such classification challenges, the ISOO report said, about the same number as the year before. Classification of the information was overturned in only about 17% of those challenges, however, compared to over 40% that were overturned the year before.

The classification challenge procedure is a potentially important internal oversight mechanism that is not yet fully mature or widely utilized. For some reason, the majority of classification challenges (496) last year originated at US Pacific Command, while only a single one emerged from the Department of Justice. In fact, ISOO found that about a quarter of all agencies do not even have a classification challenge program, though they are supposed to.

If such challenges could be promoted and accepted as a routine element of classification practice, they could serve to invigorate classification oversight and to provide an useful internal self-check.

The ISOO annual report also presented new data on declassification activity, the Interagency Security Classification Appeals Panel, agency self-inspections, controlled unclassified information (CUI), and other aspects of national security information policy.

ISOO director Mark A. Bradley, whose tenure as director began this year, told the President that in the next reporting cycle, “ISOO will focus on improving our methodology in data collection and will begin planning and developing new measures for future reporting that more accurately reflect the activities of agencies managing classified and sensitive information.”

Noteworthy new directives and instructions issued by the Department of Defense, of interest to some, include the following.

DoD Space Enterprise Governance and Principal DoD Space Advisor (PDSA), DOD Directive 5100.96, June 9, 2017

Global Health Engagement (GHE) Activities, DOD Instruction 2000.30, July 12, 2017

Assessment of Significant Long-Term Health Risks from Past Environmental Exposures on Military Installations, DOD Instruction 6055.20, June 6, 2017

Conscientious Objectors, DOD Instruction 1300.06, July 12, 2017

Department of Defense Dictionary of Military and Associated Terms, as of July 2017

The nominee to lead the Justice Department Office of Legal Counsel acknowledged that all members of Congress have the authority to conduct oversight of the executive branch, and that agencies have a responsibility to accommodate requests by members for information needed to perform their oversight function.

That might seem like a statement of the obvious. But the Office of Legal Counsel issued a controversial opinion earlier this year that took a much more limited view of congressional oversight power:

“The constitutional authority to conduct oversight — that is, the authority to make official inquiries into and to conduct investigations of executive branch programs and activities — may be exercised only by each house of Congress or, under existing delegations, by committees and subcommittees (or their chairmen),” the OLC opinion said. “Individual members of Congress, including ranking minority members, do not have the authority to conduct oversight in the absence of a specific delegation by a full house, committee, or subcommittee.”  See Authority of Individual Members of Congress to Conduct Oversight of the Executive Branch, Office of Legal Counsel, May 1, 2017.

Objecting to this narrow OLC conception of oversight, Sen. Chuck Grassley placed a hold on the nomination of Steven A. Engel to become the new Assistant Attorney General in charge of the OLC until Mr. Engel provided an acceptable response to Grassley’s concerns on the matter.

Yesterday, Senator Grassley withdrew his hold after Mr. Engel admitted, in written responses to questions from Grassley entered into the Congressional Record, that the OLC opinion was defective.

“Mr. Engel’s responses, both in writing and in person, indicate that he agrees each Member, whether or not a chairman of a committee, is a constitutional officer entitled to the respect and best efforts of the executive branch to respond to his or her requests for information to the extent permitted by law,” Sen. Grassley said.

“I am satisfied that Mr. Engel understands the obligation of all Members of Congress to seek executive branch information to carry out their constitutional responsibilities and the obligation of the executive branch to respect that function and seek comity between the branches. Therefore, I agree a vote should be scheduled on his nomination, and I wish him the very best in his new role,” he said.

See Removal of Nomination Objection, Congressional Record, July 19, 2017, pp. S4077-4079.